judgment final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

GEITA SUB REGISTRY

AT GEITA CIVIL APPEAL NO. 1707 OF 2025 (Arising from the Ruling and Order of the District Court of Geita in Civil Case No. 22084 of 2024 of 31/12/2024) PASCHAL KILONGA THOMAS……………………………………………APPELLANT

VERSUS MUSSA KASUKU KATEMI……………………………………….1ST RESPONDENT SLYVESTER BUYAMBA MGEMA………………………………..2ND RESPONDENT

JUDGEMENT Date of last order: 24/02/2025 Date of Judgment: 27/02/2025 MWAKAPEJE, J.: The appellant appeals against the District Court's ruling in Civil Case No. 22084 of 2024, in which his suit, filed in his capacity as the administrator of the estate of the late Raphael Kachila Gombanila, was struck out with costs for want of jurisdiction. Briefly, it is alleged that on 12/04/2023, the appellant and the respondents entered into an agreement whereby the respondents were to extract minerals from land belonging to the late Raphael Kachila Gombanila. In return, the respondents were obligated to pay the appellant 10% of the extracted mineral-filled sand sacks. However, the respondents failed to honour the terms of the contract, prompting the appellant to file Page 1 of 13 a suit before the District Court, claiming 2,500 sacks, equivalent to Tshs. 300,000,000/-, as his rightful share. The trial court struck out the suit with costs, leading the appellant, dissatisfied with the decision, to file this appeal on the following grounds: 1. That the trial magistrate erred both in law and fact by ordering cost against the Appellant while he filed the case as an administrator before the trial court, pursuing the rights and estate of the deceased.

2. That the trial magistrate erred both in law by determining the first preliminary objections without determining the second point of preliminary objection on the issue locus stand as there was no competent plaint to decide the issue of jurisdiction.

3. That the trial magistrate erred both in law and fact by providing a decision that does not reflect the parties and Advocate from the pleadings and submission during the determination of the Case. The appeal was argued orally, with Mr. Salehe Nassoro, a learned advocate, representing the appellant and Mr. Ondijo Silvanus, a learned advocate, appearing for the respondents. Mr. Nassoro submitted that he would argue the first ground of appeal while abandoning the second and third. He contended that the case before the District Court had been a civil suit in which the appellant represented the deceased. The respondents raised two preliminary objections: lack of pecuniary jurisdiction and lack of locus standi. The plaintiff conceded, leading to no further proceedings or costs incurred by either party. Page 2 of 13 However, he argued that the trial magistrate awarded costs without justification despite the case being at the preliminary stage and the plaintiff having conceded. He relied on George Mbukuzi and Another vs A.S. Maskini (1980) TLR 53, where the Court of Appeal vacated an order for costs due to lack of justification. Citing Section 30 of the Civil Procedure Code (CPC), he emphasised that courts have discretion in awarding costs but must act judiciously, as reaffirmed in Nkaile Tozo v. Philemon Musa Masilanga [2002] TLR 276. He prayed for the order on costs to be vacated

and the appeal to be allowed without costs. Opposing the appeal, Mr. Silvanus argued that the case was not a probate matter but an ordinary civil suit (No. 22084 of 2024) in which the appellant acted as an administrator of the estate. Since probate cases do not automatically exempt parties from costs, the trial court had acted within its discretion. He pointed to Paragraph 12.6 of the plaint, where the appellant himself prayed for costs, reinforcing that the case was purely civil. He further argued that engaging an advocate who successfully raised preliminary objections entitled the respondent to costs, as upheld in Universal Electronics & Hardware Ltd & Others v. National Bank of Commerce (Civil Appeal No. 33 of 2010) [2016] TZCA 835, page 6. Page 3 of 13 Additionally, he cited Bingile Buhwahwa & Others vs Geita Town Council & Others (Civil Case No. 1247 of 2025) [2025] TZHC 436 (24 February 2025), where the High Court awarded costs at the preliminary objection stage, confirming the permissibility of such an award. Regarding the magistrate failing to provide reasons, Mr. Silvanus maintained that awarding costs is discretionary. He referred to page 2 of the ruling, where the defendant's counsel prayed for costs, justifying the magistrate's decision. He distinguished the cases cited by the appellant, stating they dealt with taxation of costs rather than discretion in

awarding them. Finally, he argued that the appeal was premature, asserting that the appellant should have sought redress in the appropriate forum, as required in Sospeter Galus Omolo v. Equity Bank (T) & Three Others, Civil Application No. 15770 of 2024, page 10. He prayed for the appeal to be dismissed with costs. In rejoinder, Mr. Nassoro objected to Mr. Silvanus's argument that the case should have been filed in a different forum, stating this issue was not part of the grounds of appeal. He prayed that it be disregarded. He reiterated that the trial magistrate erred in awarding costs, as the appellant was acting in his capacity as an administrator of the estate. The plaint explicitly identified the case as "Paschal Kilonga Thomas Page 4 of 13 (Administrator of the Estate of Raphael Kachila) v. Musa Kasuku Katemi & Sylvester Buyamba," confirming it was brought on behalf of the deceased's estate. Emphasising that courts generally refrain from awarding costs in probate, matrimonial, and labour matters, he maintained that the principle of awarding costs judiciously is well established. He dismissed the relevance of Universal Electronics and Bingile Buhwahwa cases (supra), arguing they concerned a general civil matter, whereas in this case, the nature of the claim, probate, matrimonial, or labour was disregarded when awarding costs. In conclusion, he reiterated that Section 30 of

the CPC mandates a judicious approach to awarding costs. The cited cases, he maintained, addressed whether costs should be awarded, rather than taxation. He prayed for the order on costs to be vacated. Having carefully considered the arguments presented by both parties, the central issue to be determined is whether the trial magistrate's decision to award costs to the respondents was justified under the given circumstances. This main issue raises the following sub-questions: whether costs were justified given the preliminary nature of the proceedings, whether the trial magistrate provided reasons for awarding Page 5 of 13 costs, and whether the nature of the case (probate or civil) affects the award of costs. In addressing these sub-questions, it is essential to examine the context and rationale behind the trial magistrate's decision and the broader implications for judicial discretion in awarding costs in similar cases. It is a well-established principle in civil litigation that costs follow the event, meaning that the successful party is ordinarily entitled to recover costs from the losing party. The rationale behind the award of costs is to indemnify the successful party for expenses reasonably and necessarily incurred in the course of litigation. See the case of Premchand Raichand Ltd & Another v. Quarry Services of East Africa Ltd & Others [1972] EA 162. This principle is

codified under section 30(1) of the Civil Procedure Code, Cap. 33 [R.E. 2019], which provides as follows: "30. (1) Subject to such conditions and limitations as may be prescribed and to the provisions of any law from the time being in force, the costs of, and incidental to, all suits shall be at the discretion of the court, and the court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of such powers." Regarding the first sub-issue, it is crucial to underscore, as guided by this provision, that the award of costs is a matter of judicial discretion. Page 6 of 13 See the Case of Godfrey Sayi vs Anna Siame (Civil Appeal No. 114 of 2012) [2017] TZCA 213 (21 February 2017). In exercising this discretion, the court should ensure that costs are fair, reasonable, and proportionate to the nature of the case and the conduct of the parties throughout the proceedings. See the cases of Nkaile Tozo v. Philemon Musa Masilanga (supra) and Mohamed Salmini vs Jumanne Omary Mapesa, Civil Application No. 04 of 2014 (Unreported). In the latter case, the Court of Appeal observed that: "As a general rule, costs are awarded at the discretion of the court. However, the discretion

is judicial and has to be exercised upon established principles, and not arbitrarily or capriciously. One of the established principle is that costs would usually follow the event unless there are reasonable grounds for depriving a successful party of his costs. A successful party could lose his costs. if the said costs were incurred improperly or without reasonable cause, or by die misconduct of the party or his advocate." [Emphasis supplied] It follows, therefore, that where a party initiates proceedings, thereby necessitating that the opposing party invest time, effort, and resources in preparing and arguing preliminary objections that ultimately dispose of the case, the award of reasonable costs is both justified and equitable. The mere fact that the appellant conceded to the preliminary objection does not, in itself, extinguish the respondent's entitlement to costs. In the case of Bosco Peter Teti vs Life Mushi & Others (Civil Page 7 of 13 Appeal No. 146 of 2017) [2018] TZCA 340 (19 September 2018), it was explicitly stated that: "We, therefore, see no reason to deprive the respondents of their entitlement to costs of the case. Instead, we are satisfied that the respondents devoted their time and resources in doing legal research that enabled them to come up with a successful notice of preliminary objection. The interest of justice demands that they should be fairly

reimbursed for the time and resources spent." [Empasis supplied] Similarly, in the case of Registered Trustee of the Roman Catholic Archdiocese of Dar es Salaam vs Sophia Kamani, Civil Appeal No. 158 of 2015 CAT at Dare es Salaam (unreported), it was stated that: "Finally, the order of costs. It is a well-known principle that a winner is entitled to cost unless there are exceptional circumstances which were shown to exist. So, the appellant is end tied to costs." [Emphasis supplied] Therefore, the principle underpinning cost awards is not merely punitive but primarily compensatory, ensuring that the successful party is not unduly burdened by the financial consequences of responding to a suit that should not have been instituted in the first place. Nonetheless, where the proceedings have caused expense and effort on the part of the respondent, the court retains the discretion to award costs in order to fairly distribute the financial impact of the litigation, regardless of the stage at which the case is disposed of. See Page 8 of 13 also the case of Daikin Tanzania Limited vs Daikin Industries Builders Merchant Ltd (MBM) (Misc. Commercial Cause No. 252 of 2015) [2015] TZHCComD 2132 (8 December 2015). Concerning the second sub-question, Mr Nassoro contended that the Magistrate was required to provide reasons when awarding costs, as per section 30 of the CPC and referred to the

case of George Mbukuzi and Another vs A.S. Maskini (supra). However, I disagree with this line of argument. In that case, the Court deemed it improper for the taxing master to award costs to the respondent with respect to the steps he took to rectify his own error of suing the wrong party. Therefore, it is distinguishable from the facts of this case. A closer reading of subsection (2) of section 30 of the CPC reveals that it mandates the court to give reasons only when it deviates from the general rule rather than when it follows it. The reason behind giving a reason in such scenarios is to prevent arbitrary rulings and promote fairness. The said section provides that: "(2) Where the court directs that any costs shall not follow the event, the court shall state its reasons in writing." In the present case, the trial court correctly applied the general principle by awarding costs to the respondent. Since there was no departure from the usual rule that costs follow the event, the court was Page 9 of 13 not required to provide specific reasons for its decision. This principle was reaffirmed in Mohamed Salmini vs. Jumanne Omary Mapesa (supra), where it was observed that unless there are reasonable grounds to deprive the successful party of their costs, such reasons must be explicitly stated. In the case of Universal Electronics & Hardware Ltd & Others v. National Bank of Commerce

(supra), the Court of Appeal provided reasons for not awarding costs, where it was stated that: "That said, and since this point disposes of the matter, we will not labour in entertaining the other grounds of objection. We, as a result, strike out the appeal. As the point was raised suo muto by the Court, we make no order as to costs." [Emphasis supplied] On the other hand, in Itex Sarl v. Chief Executive Tanzania Roads Agency (TANROADS) & Another (Civil Application No. 14 of 2015) [2015] TZCA 396 (9 December 2015), the Court of Appeal outlined circumstances under which a successful party may be denied costs. These include instances where the party's conduct, either before or during the proceedings, contributed to avoidable litigation, a situation that does not arise in the present case. Beyond such scenarios, courts may also depart from the general rule in cases involving public interest litigation or constitutional matters, where awarding costs might discourage access to justice. See the cases of Joseph Osmund Mbilinyi & Another vs Commissioner General Page 10 of 13 Tanzania Prison Service & Another (Misc. Civil Cause No. 13 of 2021) [2022] TZHC 15340 (19 December 2022), Tito Elia Magoti & Another vs National Electoral Commission & 3 Others (Misc. Civil Cause No. 3 of 2022) [2022] TZHC 15383 (19 December 2022), and Hon. Luhaga Joelson Mpina vs The Hon. Speaker of The National

Assembly & Others (Constitutional Case No. 18394 of 2024) [2024] TZHC 8899 (24 October 2024), to mention a few. Therefore, the obligation to provide reasons arises only when the court chooses to depart from this established practice. Otherwise, the successful party is entitled to the costs of the suit as a matter of course. Regarding the third sub-question, I agree with Mr. Nasorro that courts refrain from awarding costs in cases such as matrimonial, probate, or labour matters. This is due to the unique nature of these cases and the underlying public policy considerations, which are personal, family- oriented, and tied to economic survival. The question that follows now is whether the impugned decision was a probate matter. I wish to note that probate causes are governed by the Probate and Administration of Estates Act, Cap.

352. A probate cause, therefore, refers to proceedings in which the court resolves issues concerning the administration of a deceased's estate. In this instance, the appellant, acting as the administrator of the estate of the deceased Raphael Kachila Page 11 of 13 Gombanila, initiated a civil lawsuit in the District Court of Geita against the respondents for breach of contract, officially docketed as Civil Case No. 22084 of 2024. It is crucial to distinguish that a civil lawsuit initiated by an administrator, as opposed to a probate case, represents a distinct legal action and cannot be classified under probate matters. Although the administrator's authority is derived from probate proceedings, the classification of the lawsuit depends on its subject matter. Lawsuits directly associated with the management of the deceased's estate, such as disputes concerning inheritance, will validity, or estate asset distribution, fall under probate law. Conversely, when an administrator pursues claims to recover debts, repossess property, or enforce contractual obligations on behalf of the estate, as in this case, the action is considered a civil lawsuit governed by civil law principles rather than probate law. Consequently, as the estate's legal representative, the administrator must adhere to the procedural framework dictated by the nature of the claim. In opposition to Mr. Nassoro's

assertion that the lawsuit ought to be treated as a probate case simply because it was filed by an administrator, I, with respect, disagree. The classification of the case laws is determined not solely by the administrator's role but predominantly by Page 12 of 13 the specific nature of the claim being pursued. In this instance, the lawsuit pertains to a breach of contract, a civil matter distinct from estate administration issues. Therefore, the trial court's decision to award costs was justified, given that the lawsuit fell within the realm of civil law rather than probate law. On the other hand, considering that Mr. Silvanus's argument regarding the appeal being filed prematurely due to the case being struck out by the trial court was not raised in any of the grounds of appeal, it constitutes a new issue. As such, I will not consider it. From the foregoing, this Court finds that the learned trial magistrate exercised his discretion judiciously in awarding costs against the appellant, as the case before him was a purely civil suit. Consequently, the appeal lacks merit and is hereby dismissed with costs. It is so ordered. DATED at GEITA this 27th day of February 2025. G.V. MWAKAPEJE

JUDGE Page 13 of 13