JUDGMENT SAMWELI FUNGO

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA CIVIL APPEAL No. 17004 OF 2024 (Originating from civil case no. 10 of 2022 of the District court of Mbarali at Rujewa) SAMWEL S/O FUNGO……………………………………………APPELLANT

VERSUS ISSA S/O RASHID MKANGASI……………………………1ST RESPONDENT COSTA S/O SYNET FUNGO….………………………………2ND RESPONDENT MATHIAS S/O FUNGO…………………….………………..3RD RESPONDENT

JUDGMENT Date of Last hearing: 20/8/2024 Date of Judgment: 27/8/2024 Nongwa J.: The appellant being aggrieved by the order for dismissal of the matter on ground that speed track has lapsed filed this on appeal three grounds. The gist of the complaint in those three grounds as can be gleaned in the memorandum of appeal is that the trial magistrate erred in law in dismissing the suit due to the expiry of the scheduled speed track. The appellant has been represented by Mr. Ezekiel Mwampaka while Mr. Joseph Kwilasa 1|Page appeared for the respondents. Mr. Kwilasa maturely conceded with the appeal and did not file any reply to the memorandum of appeal. Supporting the appeal, Mr. Joseph Kwilasa submitted that the matter was dismissed before Hon. Mwandumbya after the issue was raised that the speed track has lapsed, immediately the trial magistrate dismissed the matter with costs. That, the only thing the trial court was supposed do is not dismissal for the interests of the parties and interest of justice. He referred the case of National Bureau of Statistics Vs. The National Bank of Commerce and Eva Shoo Civil Appeal No. 113 Of 2018 CAT at DSM (TanzLII), where, together with other issues the court of appeal discussed the issue of speed track and in particular order VIII, where the powers of court to depart from the scheduling of the speed track has been well explained. Mr. Kwilasa

contended further that the law relating to speed tack explains what are remedies when the scheduled speed track has lapsed therefore it was not right for the trial court to dismiss the matter. He prayed the matter be remitted back to the trial court for necessary orders and that since it is the court’s misdirecting itself, the appeal be allowed without costs. 2|Page I have considered the submission from Mr. John Kwilasa for the Respondents that has been supported by the appellant’s counsel Mr. Ezekiel Mwampaka and the position of the law in respect of remedies available where the speed track has lapsed. Order VIII Rule 23 which governed issues related to speed track was not intended to cause the suit to dismissed because of failure to abide to a speed track assigned. It provides that; ‘Where a scheduling conference order is made, no departure from or amendment of such order shall be allowed unless the court is satisfied that such departure or amendment is necessary in the interests of justice and the party in favour of whom such departure or amendment is made shall bear the costs of such departure or amendment, unless the court directs otherwise.’ Therefore, even if no extension is sought and granted by either party, the party contributing towards the delay to have the case finalized within the scheduled speed track will only be condemned to pay costs to the other party.

Practically expiry of speed track is often caused by the parties, the trial court and sometimes by other circumstances quite independent of the parties’ control thus expiry of the speed track should not affect the parties' 3|Page substantive rights. As stated in the case of National Bureau of Statistics Vs. The National Bank of Commerce and Eva Shoo (supra) that the spirit embraced in assigning a suit to a certain speed track is only to facilitate the expeditious disposal and case management. It is thus not expected that failure to adhere to a scheduled speed track will have serious consequences like having a suit dismissed rather the court is charged to safeguard substantive justice to the parties by affording them opportunity to be heard and decide the matter on merit. In the appeal at hand, the trial magistrate just came up with a ruling dismissing the matter for the lapse of speed track, the counsels for both sides also are at once that what was done was contrary to the dictates of Order VIII rule 23, what the trial court, either upon being moved by either of the parties or suo motu ought to have amended the scheduling order to enlarge the time frame until the case is concluded. In the end I find that it was not proper for the trial court to dismiss the matter on ground of expiry of the speed track, I hereby quash the proceedings in respect of lapse of speed track and the resultant ruling and set aside the order dismissing the suit. The trial court record has to be remitted back to the trial court for it to proceed with hearing of the suit 4|Page according to law from the stage when it had reached before dismissal. Each party bear own costs. V.M. NONGWA

JUDGE 27/8/2024 Dated and Delivered at Mbeya this 27th August 2024 in presence of Mr. Mr. Ezekiel Mwampaka for Appellant who is absent also holding brief of Joseph Kwilasa for respondents who are all present. V.M. NONGWA

JUDGE 5|Page