RACHEL KANYENYE

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA CIVIL APPEAL NO.47 OF 2022 RACHEL HENLY KANYENYE COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS CRDB BANKPLC RESPONDENT / DEFENDANT JUDGMENT BADE,J, CONSENT JUDGMENT 13/09/2024 & 15/11/2024 BADE,J. This is a consentjudgment that arose from a deed of settlement entered and agreed upon successfully by the parties. The parties filed a settlement deed on 09/09/2024 having reached a settlement and asked that the court extract a decree out of the settlement and mark the matter settled. The settlement resulted from an Appeal filed by the Appellant herein having been aggrieved by the decision of the Arusha RM’s Court in Civil Case No 64 of 2020, Ngoka, SRM on the grounds that: i. That the learned trial magistrate erred in law and fact in holding that the court lacked jurisdiction to entertain the matter, ii. That the learned trial magistrate erred in law and fact in striking out the matter because the court lacked jurisdiction while it could have transferred the matter to the court with competent jurisdiction, iii. That the learned trial magistrate erred in law and fact in holding the loan amount was TZS 100,000,000 while the notice of default revealed a different figure which is well within the pecuniary jurisdiction of the court, iv. That the learned trial magistrate en’ed in law and fact in raising the issue ofjurisdiction suo moto and required the parties to address it while the proof of the amount could not be ascertained during the hearing of the raised matter without adducing evidence, v. That the learned trial magistrate erred in law and fact on ruling or commenting on the issue of defamation and disregarded it without affording parties the right to be heard on it Upon the Appeal being set for hearing, the parties informed the court of their intention to settle the matter out of court, and their ongoing effort to negotiate a settlement. On 27/08/2024 Mr. Ombeni Kimaro, advocate for the Appellant and Mr. Mmbando who represented the Respondent appeared and informed the Court that they were able to negotiate a compromise and were now awaiting execution of the settlement deed. This was preceded by the filing of the deed of settlement in Court on 09/09/2024, praying for the same to be recorded and foiin a decree of this Court as explained above. In the event of the status given, this Court is guided by Order XXIII Rule 3 of the Civil Procedure Code, Cap 33 R.E 2022 that: “Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such an agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit”. As I passed through the deed of settlement filed on 04/09/2024,1 was not satisfied with the terms agreed upon as they came across as ambiguous and unequivocal leaving room for multiple interpretations. On this account, I ordered that the parties to re-look at what has been agreed upon, at which prompt they filed an amended deed of settlement filed on 30/10/2024 for which this judgment is based after the parties are recorded to have arrived amicably into a lawful compromise agreement that disposed of the whole suit. As the spirit of this Court is to encourage the parties to settle their disputes amicably, the amended deed of settlement entered and filed on is accordingly recorded and form part of this consent judgment as held by Court of Appeal in the case of Motor Vessel Sepideh and Another vs Yusuph Moltamed Yusuph and 2 Others, Civil Application No. 237 of 2013 (unreported) thus: “Where there is a lawful agreement or compromise, the Court is bound to record settlement once it is arrived by the parties”. In lieu of this finding, the present case is marked settled to the extent of the deed of settlement which is annexed herein and adopting to the terms and conditions agreed by the parties. In particular, the same is ordered as per the settlement deed that: 1. The total outstanding balance to be paid by the Appellant is TZS 99, 936, 339.58 2. The Appellant shall pay the total outstanding amount above within a period of 2 years, which she has already started to execute from 30th April 2024 to 30th April 2026. 3. The said repayment shall be made in installments as provided below: i. The Appellant will make a monthly deposit of TZS 1, 200,000 from the 30th of April, 2024 to the 30th of April, 2026. ii. The remaining balance of TZS 71,136,339.58 shall be paid in full within the said period from 30th April 2026 in equal installments of TZS 2,000,000 starting from 30th April 2026 to 28th February 2029. The remaining TZS 1,136,339.58 shall be paid as the last installment on or before 30th March 2029. iii. The Appellant shall have the option to make one bullet payment of the whole amount of TZS 71,136,339.58 or any amount remaining outstanding thereat if she so wishes, but she would have to inform the 1st Respondent- CRDB BANK PLC of this intention, iv. That if a default in payment of the remaining balance happens then the remaining amount of TZS 71, 136,339.58 or any amount remaining outstanding shall have to be paid in a lump sum. v. There is no interest associated with the amount that is outstanding as all of the interest has been waived, vi. The Appellant shall make every installment on the due date/month as stipulated above without fail or delay, vii. That in the event the Appellant shall default to honor any of the payment tenns and conditions as agreed in this Deed of Settlement and the agreement that will follow after 30th April, 2026, the 1st Respondent- CRDB BANK PLC would be entitled to recover the whole outstanding debt due as at the date default occurs viii. The 1st Respondent- CRDB BANK PLC shall have all the rights under the mortgage deed/deed of security including to sell by public auction, the mortgaged security which is the unsurveyed property located at Nanja- Moshono ward owned by the Applicant, and the proceeds realized there from shall be used to liquidate the outstanding debt. Each party to bear its own costs. It is so ordered. DATED at ARUSHA on this 15th day of November 2024 Dated at ARUSHA this 15th of November 2024 . A. Z BADE JUDGE OF THE HIGH COURT