RONGTON KASHAMBU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA PC CIVIL APPEAL NO. 23129 OF 2024 (Arising from Civil Appeal No. 13411 of2023 District Court of Missenyi; Originating from Nsunga Primary Court in Civil Case No. 19 of2024) RONGTON KANSHAMBU....................................................... APPELLANT

VERSUS AMINA NURU........................................................................ RESPONDENT

JUDGMENT 27th February and 10th March, 2025 BANZL J.: This appeal emanates from Civil Case No. 19 of 2024 before Nsunga Primary Court where the respondent successfully instituted a suit against the appellant claiming for TZS 3,000,000.00 which she contended to have entrusted to him when she was working at the Central Bank (BOT) while at JKT course. The appellant partially denied the claims contending that, he owed the respondent only TZS 1,000,000.00. In her evidence, the respondent contended that, through her mother, she gave the appellant TZS 3,000,000.00 intending the same to be returned to her after the contract at JKT has ended, however, when she came back home, the appellant told her that, he had some problems so she had to wait until November, 2023. Thereafter, the appellant came with a proposal of Page 1 of 6 giving her TZS 800,000.00 but she refused to accept. Her evidence was supported by her mother, Angelina Simon (SM2) and Mpesa transactions (Exhibit Al). According to SM2, she knew the appellant who is the mobile money agent. She used to send money to the respondent via him and at one time, the appellant approached her seeking the respondent to lend him some money while committing himself to return it when the respondent returns from JKT. However, when the respondent returned, the appellant did not return that money. Later, the appellant contended that, he had

already paid TZS 2,000,000.00 through electronic transactions and the remaining amount was TZS 1,000,000.00. In his defence, the appellant contended that, he was dealing with electronic money transactions and in 2023, SM2 approached him telling her that, the respondent had TZS 5,000,000.00 that she had acquired while working at BOT. She told him that, he would be sending her some money in instalments whenever she needed it. Thereafter, he used to send her TZS 300,000.00 in instalment electronically through her number 0743094463 between 02/06/2023 and 13/02/2024 which made total of TZS 2,000,000.00 and remained with unpaid amount of TZS 1,000,000.00. After receiving the evidence from both parties, the trial court decided in favour of the respondent and ordered the appellant to pay the whole Page 2 of 6 claimed amount within two months. His appeal to the District Court of Missenyi (the first appellate court) bore no fruits, hence, this appeal containing two grounds. At the hearing, both parties appeared in person unrepresented. In his brief submission, the appellant contended that, before the trial court, he adduced oral and documentary evidence indicating how he paid the respondent the claimed amount. Thus, the trial court and the first appellant erred to conclude that, he did not prove that, the money he sent her was for clearing of debt. In addition, the appellant argued that,

the respondent failed to tender license or approval from TRA establishing that, she is legally permitted to conduct business of lending money. In reply, the respondent contended that, she gave money to the appellant with the promise to return the same to her but he had never returned it. Concerning the money alleged to be sent to her by the appellant, the respondent stated that, the money was sent by her mother through the appellant who is the Mpesa agent. So, those transactions have nothing to do with her money. She further alleged that; the appellant did not produce any documentary evidence before the trial court as he alleged. Page 3 of 6 In his rejoinder, the appellant contended that, there was no money that was sent to the respondent by her mother through him and he had never admitted to have borrowed money from the respondent. The parties were probed to address the court if it was proper for Primary Court to receive electronic evidence i.e., Exhibit Al. The appellant was of the view that, it was wrong for Primary Court to receive electronic evidence. On her side, the respondent stated that, she did not know if the law does not permit the Primary Court to receive electronic evidence. I have carefully considered the submissions of both parties and the records of the two court below. In their evidence before the trial court, the appellant conceded to have received money from

the respondent via his phone number 0743094463 but later he started repaying that money by sending it to the respondent through her phone number 0758557300 and by 13/02/2024 he had already deposited TZS 2,000,000.00 to the respondent's number. According to his evidence, he was paying the money electronically through Mpesa transactions. However, before this court he alleged that, he has electronic print out showing the money he was sending to the respondent as payment of the debt. The respondent disputed that contention by tendering electronic print out alleging that, the money she received was not for clearing of the debt in question. Looking at the nature of their Page 4 of 6 evidence, it goes without saying that, proof of the case depended on electronic evidence. With that piece of evidence and having probed the parties to address the court, I find it pertinent to begin with the legal issues raised by court on whether it was proper for primary court to admit electronic evidence. It is common knowledge that, admissibility of electronic evidence is governed by section 64A of the Evidence Act [Cap. 6 R.E. 2022] (the Evidence Act) and section 18 of the Electronic Transactions Act, No. 13 of 2015. It is undisputed that, reception of evidence in primary courts is governed by the Magistrate' Courts (Rules of Evidence in Primary Courts) Regulations which does not provide for

admissibility of electronic evidence. It is also common knowledge that, the Evidence Act and Electronic Transactions Act are not applicable in primary courts. See also the case of Hamza Mrindoko Msoffe vs Flora Mbonea Mmbaga (PC Civil Appeal No. 09 of 2023) [2024] TZHC 5702 (12 June 2024). As alluded above, it is undoubted that, Exhibit Al, a print out from Mpesa transaction which the trial magistrate relied upon in his decision, is electronic evidence in the meaning of section 64A(3) of the Evidence Act. On the other hand, though not tendered in evidence, the appellant in submission also claimed to have the same electronic evidence proving his payment. In Page 5 of 6 the circumstance, considering that each party is depending on electronic evidence to prove or disprove its case, it was improper for the trial court to determine that matter which involves electronic evidence. That being said, whatever transpired at Nsunga Primary Court was nothing but a nullity as it lacked jurisdiction to deal with electronic evidence. In that regard, I invoke my revisional powers under section 44 of the Magistrates Courts Act [Cap.ll R.E. 2019], and nullify the proceedings, quash the judgments and set aside orders of the lower courts. The respondent is at liberty to file a fresh suit before the District Court of Missenyi which has jurisdiction to receive electronic evidence. Each party shall bear its own costs. I. K. BANZI

JUDGE 10/03/2025 Delivered this 10th day of March, 2025 in the presence of both parties, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. I. K. BANZI

JUDGE 10/03/2025 Page 6 of 6