Regional Manager, Tanroads Kagera vs Ruaha Concrete Company Limited (Civil Appeal No. 565 of 2024) [2026] TZCA 586 (15 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: LILA. J.A.. RUMANYIKA. J.A. And MANSOOR, J.A.^ CIVIL APPEAL NO. 565 OF 2024 REGIONAL MANAGER, TANROADS KAGERA ................................. APPELLANT VERSUS RUAHA CONCRETE COMPANY LIMITED ........ ............................RESPONDENT '(Appeal from the Ruling and Order of the High Court (Commercial Division) at Dar es Salaam (Mkeha. J.) Dated the 29n d day of August, 2023 in Misc. Commercial Cause No. 221 of 2022 JUDGMENT OF THE COURT 8th December 2025 & 15th May, 2026 MANSOOR. J.A.: The appeal relates to the late filing of an arbitral award procured in favour of the respondent way back in 2005. The arbitral award was issued by the sole arbitrator, Mr. Kesogukelwele Msita, (the Arbitrator), who ordered the appellant herein (TANROADS- KAGERA) to compensate the respondent (RUAHA), an amount of USD 1,195,967.78, for losses suffered as a result of the breach of an agreement by the respondent for construction of roads in Kagera Region. The arbitral award was issued and published on 28tfl September, 2005. The award had some errors on the calculation of the amount of compensation which prompted the i

respondent-to apply for its rectification before the Arbitrator The Arbitrator issued the rectified award on 13th April, 2006. In compliance to Rule 12 of the Arbitration Act, Cap 15, on 5th September, 2006, the Arbitrator caused the rectified award to be filed in the High Court, Dar es Salaam Registry, and had accordingly notified the parties of the filing. Upon receiving the notification of the filing of the award, the appellant took an objection that, the award was filed beyond the prescribed time, the objection was upheld by the High Court. Consequently, On 19th April 2013, the award was struck out for being time barred. Aggrieved by the decision of the High Court of the order of striking out the award, the respondent filed an appeal to the Court of Appeal. The appellant was also aggrieved by the decision of the High Court for making an order of striking out the award instead of dismissing it, hence they cross appealed. The appeal and the cross appeal were determined in Civil Appeal No. 115 of 2017, where the Court upheld the decision of the High Court that, the award was filed outside the prescribed time reckoning from the date it was issued i.e., on 28 September 2005. The Court dismissed the appeal, and allowed the cross appeal and held that, the award ought to

have been dismissed instead of striking it out, reasoning that, since the Arbitration Act was silent on timelines, the Law of Limitation Act was applicable and the award ought to have been filed within six months from the date it was issued in terms of section 46 as well as item 18 of Part II to the Schedule of the Limitation Act. That, under section 3 of the Law of Limitation Act, the Award was dismissed for having been filed beyond the prescribed time. Still desirous of executing the award, the respondent filed Misc. Commercial Application No. 221 of 2022, seeking for extension of time to file and register the arbitral award. The application was premised under sections 88(1) and 89(1) of the Arbitration Act as well as section 14(1) of the Law of Limitation Act, Cap 89. In response to the application, together with the counter affidavit filed to challenge the application, the appellant took three objections on the competence of the application, one, the High Court lacked jurisdiction as it was functus officio, two, the application was frivolous and vexatious and, three, the application was an abuse of the court process. During the proceedings, the High Court ordered the preliminary objections so raised and the main application to be determined simultaneously, however, on 25th May 2023, when the matter was called for hearing, Mr. Paschal Kamala, the counsel who appeared for RUAHA, 3

addressed the Court that, they were ready for hearing of the preliminary objections, thus, Ms. Rehema Mtulya, Principal State Attorney, who appeared for the TANROADS -KAGERA, addressed the court only on the preliminary objections. Mr. Kamala also responded on the preliminary objections only. The High Court gave a Ruling on 29th August 2023, in which the first preliminary objection was sustained stating that, a matter which is dismissed under section 3 of the Law of Limitation Act cannot be revived and an application for extension of time becomes incompetent. However, the High Court in the same Ruling and without hearing the parties on the merits of the application, allowed the application and ordered the applicant i.e., RUAHA to proceed registering the award deemed to have been issued at the date of the Ruling. At page 6 and 7 of the Ruling which is found at page 206 and 207 of the record of appeal, the Judge of the High Court said: "Equally, it is my holding that ; recognition o f a time barred decree or award by the judgem ent debtor coupied with deliberate efforts o f settling the same revives time lim itation for registering and executing the decree or award. For the respondent's act o f engaging in efforts to settle or satisfy the time barred award, in the interests o f justice, I hold the act to have revived the time lim itation for registering and executing the award. The applicant

may proceed registering the award deeming it to have been issued on the date o f this ruling." Aggrieved by the decision of the High Court, the appellant filed the present appeal raising five grounds, but for the reasons that will become apparent in the course of this judgement, we shall deliberate only on grounds two and three, in which the appellant is complaining that, it was denied the right to be heard when the High Court allowed the respondent to register the award. Grounds two and three read as follows: 2. The High Court Judge erred in taw and facts by granting and order for the registration o f award to the Respondent without affording a right to be heard to the Applicant to show cause on why the award should not have been registered. 3 The High Court Judge erred in law and facts by granting the Respondent an extension o f time to register an award while there was neither hearing for such application no an order to the effect that the Respondent deserved to be granted extension o f time to file ■ arbitral a ward. At the hearing, the appellant was represented by Ms. Rehema Mtulya, Senior State Attorney who was accompanied by Mr. Gulisha Mwanga, Senior State Attorney, Mr. Augustino Masanja, Mr. Ombeni Ibrahim, and Mr. Joseph Bundala, State Attorneys while the respondent

had the services of Mr. Pascal Kamala and Mr. Antipas Lakam, learned advocates who appeared virtually from Dar es Salaam. In support of grounds two and three of the appeal, the appellant submitted that, the High Court decided on the merits of the application without affording them a chance to address the court, thus a decision arrived was a nullity and ought to be dismissed. They supported their arguments citing the case of Abbas Sherally & Another versus Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 133 of 2002 (unreported), which stated that, "a decision which is arrived at without affording parties a chance to be heard should be nullified even if the same decision would have been reached had the parties been heard, as such is a denial o f the right to be heard and a violation o f naturalju stice." Again, Ms. Mtulya referred to the case of Mufindi Paper Mills Limited vs Ibatu Village Council & 3 others, Civil Revision No. 55/17 of 2019 when referring to the case of Mbeya- Rukwa Auto Parts and Transport Limited versus Jestina George Mwakyoma [2003] T.L.R 251, and the case of Haji Mradi versus Sadiki Rupia, Civil Appeal No. 24 of 2016, in which we held that, "the right to be heard is fundamental and is enshrined in the Constitution hence it is not only a breach o f natural justice but also an abrogation o f the constitutional guarantee o f basic rights." 6

Mr. Kama la responded to grounds 2 and 3 together as these, two grounds revolve on the same issue of a denial of a right to be heard. He submitted that, while it is true that, the High Court Judge ordered for the preliminary objections and the main application to be heard and determined simultaneously, the Honourable Judge noted an admission on the part of the appellant when they admitted before him that, there was an award which was not executed. Mr. Kamala termed it as a debt contained in the arbitral award, and that, the debt has not been paid, as such there was an admission by the appellant on the existence of a debt which was not fully paid. Mr. Kamala submitted that, the Judge of the High Court is empowered under Order XII, Rule 4 of the Civil Procedure Code, Cap 33, (the CPC), at any stage of a suit to enter a judgement on admission, without waiting for determination of any other question between the parties. Mr. Kamala submitted that, the appellant made an oral admission before the High Court Judge, and that, the Judge had held Suo moto that, since there was an admission of the debt, and for the interest of justice, it was within the mandate of the Judge to enter a judgement on admission or any other order deemed fit and ju st Mr. Kamala made reference to a foreign case of Ellis v Allen (1914) ICh 904, where Sargant J, said, "... In my judgem ent it applied wherever

there is a dear admission o f facts in the fact o f which it is im possible for : the party making it to succeed." Mr. Kamala seems to argue that, when there is an admission, there is the right to be heard. He therefore, implored the court to dismiss the appeal as grounds two and three are unmeritorious. The appellant had nothing for a rejoinder, but insisted that the appeal be allowed and they should be given an opportunity to present their case before the High Court. In determining grounds two and three on a right to be heard, we noted that, both parties are at loggerheads that, the main application for extension of time to register the arbitral award was not heard on merits as parties were heard only on the preliminary objections. They both agreed that a ruling delivered by the High Court determined both the preliminary objections and the application itself on merits. However, the respondent contends that, there was an oral admission made by the appellant on an existence of an arbitral award which is yet to be satisfied, and that, under Order XII Rule 4 of the CPC, the Honourable Judge Suo moto had the mandate to enter a judgement on admission. On whether there was a judgement or order on admission, we understand that, while it is true that, Order XII Rule 4 of the Civil

Procedure Code, allows courts to issue decrees on admitted facts without full trial, but the procedure for admission is applicable on suits in which there must be a clear and unequivocal admissions of facts contained in the pleadings. The clear and unequivocal admission must relate to the facts pleaded in the pleadings and not oral admission. In this matter, the appellant simply admitted the existence of an arbitral award, but they never admitted on the controversial issue which was before the court. The controversial issue before the court was whether the respondent should be allowed an extension of time to register the award. Glaring at the record, we do not see it recorded that, the appellant admitted either orally or in their pleadings that, the respondent be allowed to register the award. In fact, there was no clear and unequivocal admission on the matter which was before the court on whether the respondent should be allowed an extension of time to register the award. Again, on the record, we did not see any judgement entered on admission by the parties under Order XII Rule 4 of the CPC. The arguments by Mr. Kamala are a mere speculation not supported by the records, and indeed an overstretching of the applicability of the rules and procedure regarding the judgement on admission envisaged under Order XII Rule 4 of the CPC. 9

On the.record, there are the directions issued by the Court on 2n d May 2023, after it was reported that, the matter could not be resolved amicably outside the court. The court made an order to have the preliminary objections and the main application be heard simultaneously. We understand that, and rightly so, the directives to have the preliminary objections and the main application be determined together, were issued in exercise of the court's discretion to ensure expeditious disposal of cases or applications. On record, there was no admission on any of the issues in the application for extension of time and no judgement on admission was entered by the High Court, and this is why the court had set time for hearing the application on merits. Had the court entered a judgement on admission, the proceedings would have ended there, and no hearing date would have been fixed. Although the court allowed the respondent an extension of time for filing the award for the reasons of meeting the ends of justice, it is indeed correct that, such relief was given before the parties were afforded a chance to be heard. There is nowhere in the impugned ruling of the High Court in which the Judge had issued a decree or order based on an admission of the parties. There was a hearing date scheduled for hearing of both the preliminary objections and the application simultaneously, however as shown in the impugned proceedings, only the 10

preliminary objections were heard. The trial Judge ought to have determined only the preliminary objections before making any order for final determination of the application. Furthermore, by hearing only the preliminary objections without hearing the application on merits, it amounted to variation of the court order earlier given without informing the appellant or the parties to the case, denying them the right to argue on the main application, hence a denial of the opportunity to be heard. The tenets of the right to be heard are to give parties reasonable opportunity to present their case. It is evident that, the application was not fully argued and never fully prosecuted on its merits and giving a ruling Suo moto based on the principle of meeting the ends of justice is a denial of fundamental rights to be heard. As stated in the cases cited by the appellant, the case of Abbas Sherally and Mufmdi Paper Mills Limited, courts are required to adhere to the principles of natural justice, procedural fairness, and the right to a fair hearing, and as can be clearly seen from the proceedings there was a breach of parties' fundamental rights as envisaged under the Constitution. The Court cannot afford to shut its eye to such serious legal issues that call for settling as rightly demonstrated by the appellant. The fair hearing rules require a decision maker to inter alia afford a person an n

opportunity to be heard before making any decision.affecting his/her interests. While courts have the inherent power to act in the interest of justice, such power cannot be used to overrule express statutory provisions or fundamental natural justice. As we held in Rajabu Suya and Others vs Arusha International Conference Centre (Civil Appeal No. 113 of 2007) [2010] TZCA 394 (31 August 2010), the Court cannot, under the guise of doing justice, ignore the law of the land. In the present case, by granting the respondent to register the award without hearing the parties as to why the extension sought be granted or denied, the High Court ignored the fundamental processes of natural justice. Flowing from the above, it is our finding that, grounds two and three must succeed, thus the appeal is allowed. Indeed, the High Court, Commercial Division in Misc. Commercial Application No. 221 of 2022 breached the parties' rights to a fair hearing. Consequently, the ruling delivered on 29th August, 2023 in Misc. Commercial Application No. 221 of 2022 is hereby set aside. The High Court, Commercial Division is hereby ordered to fix a date for hearing the main application for extension of time and thereafter deliver a ruling for determination of both the preliminary objections and the main application. It is directed that; the hearing be 12

presided over by another Judge of the High Court, at the earliest possible opportunity. Since grounds two and three sufficed to determine the entire appeal, we shall not determine the rests of the grounds of appeal. Consequently, appeal is allowed, and costs to follow the cause. DATED at DODOMA this 31st day of March, 2026. S. A. LILA JUSTICE OF APPEAL S.M. RUMANYIKA JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 15th day of May, 2026 in the presence of Ms. Rehema Mtulya, learned Senior State Attorney for the appellant, Mr. Eric Kanga, learned counsel for the respondent, via virtual Court, and Mr. Stephen Msila, Court Clerk; is hereby certified as a true copy of the original.

• W. A. HAMZA ' , ) DEPUTY REGISTRAR ! COURT OF APPEAL