Patrick Benard Kagaruki

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

MOROGORO DISTRICT REGISTRY

AT MOROGORO PC CIVIL APPEAL NO 11799 OF 2024 (Appealfrom the decision ofthe District Court ofMorogoro at Morogoro in Civii Case No 32 of2023)

BETWEEN

PATRICK BERNARD KAGARUKI APPELLANT

VERSUS

MICHAEL MWAMBANGA RESPONDENT

JUDGMENT MRUMA,J This Is a second Appeal, the Respondent Michael Mwambanga, successfully sued the Appellant Patrick Michael Kagaruki, for Shillings 12,299,000/= being the amount due and payable under the guarantee agreement purportedly between the parties herein in respect of a loan advanced to the Appellant by NMB Bank and guaranteed by the Respondent. After hearing the parties the trial court entered judgment in favour of the Respondent and order the Appellant to pay the amount claimed by the Appellant. Aggrieved by that decision the Appellant 1 appealed to the District Court which upheld the trial court's decision. In his Judgment after repeating submissions of the parties, the learned appellate magistrate stated thus:- "It is trial[sic], being the first appellate courtits primary duty is to call trial court proceedings with itsjudgment and the same was done. Reading the iast two pages of the trial courts judgment, I find nothing to disturb the trial court's judgment That be discussed this appealis dismissed with costs" That decision did not amuse the Appellant and he has come to this court armed with seven grounds of appeal. Among the seven grounds is the seventh ground in which the Appellant is complaining that:- 7. That the appellate court erred in law for failure to comply with the principle of composing a judgment. Other grounds runs as follows:- 1. That the trial court erred in law and fact for failure to decide on issues framed in making decisions.

2. That the trial court erred in applying the law while evaluating the evidence on record and gave weight to the weak evidence of the Respondent.

3. That the trial court erred in law and facts in not considering the fact that there was no proof that the respondent had paid the loan at the bank to entitle him to be refunded.

4. That the trial court erred in law and fact in giving weight to the weak evidence of the respondent who failed to prove on balance of probability.

5. That the trial court and the Appellate court erred in applying the law while evaluating the evidence on record and and gave weight to the weak evidence of the respondent.

6. That the trial court and the Appellate court erred in law and facts in entering the decision in favor of the respondent and upholding the same while the respondent failed to prove on balance of probability. I have started with the seventh ground because in my view that ground alone is sufficient to dispose of this appeal by allowing it. Rule 4 of Order XX of the Civil Procedure Code [Cap 33 R.E. 2019], provides for what should be the contents of a judgment. The law says:- '>1 judgment shall contain a concise statement of the case, the points for determination the decision thereon and the reasons for such decision" The term concise statement under the above cited provision of the law entails a statement that is brief and doesn't include any extra information. It must be something which goes right to the point for determination. Section 3 of the Civil Procedure Code defines Judgment as a statement given by a judge or a magistrate of the grounds for a decree or order. As I have stated above the learned appellate court's magistrate in what he considered to be judgment stated thus:- it is the primary duty to call the trial court's proceedings with itsjudgment and the same was done. Reading the last two pages of the trial court'sjudgmentIfind nothing to disturb the trial court's judgment....That be discussed this appeal is dismissed with costs" I ask myself is this a judgment? In

my view it is not. I have already restated the meaning of a judgment as per Rule 4 of Order XX od the Civil Procedure Code. The decision of the learned Principle Resident Magistrate doesn't contain a concise statement of the case, the point for determination and the reasons for the decision arrived at. The Court of Appeal in the case of Hamis Rajabu Dibagula vs. Republic, [2004] T.L.R. 196 emphasized this stance by stating that: 'yi judgement must convey some indication that the judge or magistrate has appiied his mind to the evidence on the record A good judgement is dear, systematic and straight forward. Everyjudgementshouid state the fact ofthe case, estabiishing each fact by reference to the particuiar evidence by which it is supported and it shouid give sufficientiy and piainiy the reason whichjustify the finding" In our case the learned Principal Resident Magistrate did not analyse the issues cropped up out of the grounds of appeal and submissions of the parties. He did not assign any reason for agreeing with the trial court's findings and decision. In that respect I am of the view that this is not a judgment. In the upshot therefore there is no judgment of the district court which appeal can be allowed to stand. Since there is no judgment, this court cannot proceed with the determination of arguments which are intended to Impugn a judgment which doesn't exist. Instead I

would quash all the proceedings at the District appellate court save for the grounds of the appeal and its corresponding reply and order that the Appeal be re-heard on the same grounds by a different magistrate. In other words, I order the appeal from the trial court to the District court to be heard afresh before a different magistrate. Each party shall bear costs with respect to the present proceedings. Order accordingly. R. MRUMA -z ■z- >OUDGE 's : 7. 11. 2024 Order: Records should be remitted to the Resident Magistrate In charge of the District Court for Re-assigning the appeal to another magistrate who will hear it and compose a judgment. 0^ A. R. MRUMA A Uj >

X JUDGE \ V- J'is£ 7. 11. 2024