Peter Mateo Sidawe vs Nobertina Victorian Benedict (Civil Appeal No. 814 of 2024) [2026] TZCA 500 (7 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: FIKIRINI. J.A., RUMANYIKA, 3.A. And ISSA. J J U CIVIL APPEAL NO. 814 OF 2024 PETER MATEO SIDAWE ............................................................... APPELLANT VERSUS NOBERTINA VICTORIAN BENEDICT......................................... RESPONDENT (Appeal from the Judgment and Decree of the RM's Court of Arusha at Arusha) fMsoffe, PRM with Extended Jurisdiction) dated the 8th February/ 2024 in Misc. DC Civil Appeal No. 6 of 2023 RULING OF THE COURT 28th April & 7th May, 2026 ISSA, J.A.: The parties to this appeal were husband and wife who contracted a civil marriage in 2010 and later solemnized their union through Christian rites in 2019. Unfortunately, they could not live up to their vows to live together until death separated them. In 2022 the respondent filed Matrimonial Cause No. 2 of 2022 in the District Court of Karatu (the trial court) seeking a decree of divorce, custody of their two children, maintenance, division of matrimonial properties and a declaration that some properties were her personal properties not subject to division. The

grounds of divorce were cruelty, adultery and defamation allegedly committed by the appellant. The trial court found the marriage had broken down irreparably and granted a decree of divorce. The custody of children was given to the respondent while the appellant was ordered to pay TZS. 250,000.00 per month as maintenance. The properties were also divided between the parties. Aggrieved, the appellant lodged an appeal to the High Court of Tanzania at Arusha on 31st March, 2023 which was heard by Devota J. Msoffe, PRM with Extended Jurisdiction (the 1st appellate court) who dismissed the appeal on 8th February, 2024. Undaunted, the appellant preferred the second appeal to the Court predicated on ten grounds of appeal, which we will not reproduce for the obvious reason that will become apparent shortly. When the appeal was called on for hearing, the appellant had the services of Mr. Felichism Baraka, learned advocate while the respondent was represented by Mr. Samuel Welwel, also learned advocate. At the outset, the Court suo motu wanted to satisfy itself on the propriety or otherwise of the order transferring the appeal from the High Court to the Resident Magistrate with Extended Jurisdiction. Mr. Baraka

was the first to start the ball rolling, he submitted that he perused the record of appeal, but the transfer order was nowhere to be seen. Therefore, he argued that there is no way we can proceed with the second appeal as the 1st appellate court determined the appeal without jurisdiction. On the way forward, he urged the Court to dismiss the appeal proceedings before the 1st appellate court from the day of purported transfer. Mr. Weiwel joined hands with Mr. Baraka and submitted that, the defect observed is not curable, hence, urged the Court to nullity the 1st appellate court's proceedings and remit the appeal to the High Court for hearing. From the record of appeal and as conceded by the learned counsel, the order of transfer of appeal from the High Court to Resident Magistrate's Court with Extended Jurisdiction is missing from the record and our perusal of the original file did not yield any result. Therefore, we have one issue to determine and this is whether it was proper for the Resident Magistrate's Court (the 1st appellate court) to proceed with the hearing of an appeal filed at the High Court without an order transferring the appeal from the High Court to the Resident Magistrate's Court. Our starting point is the law governing the transfer of cases from the High Court to the Resident Magistrate's Court with Extended

Jurisdiction. The relevant provision is section 45 of the Magistrate's Court Act, Cap. 11 (the MCA) which provides: "45 (1). The M inister may, after consultation with the Chief Justice and with the Attorney General, by order published in the Gazette (a) Invest any resident magistrate, in relation to any category o f cases specified in the order, with the appellate jurisdiction ordinarily exercisable by the High Court .... (2) The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident m agistrate upon whom extended jurisdiction has been conferred by section 4 5 (1 )." From the above provision, in order for a Resident Magistrate to have jurisdiction to preside over a case ordinarily presided by a Judge of the High Court, two processes must be done. First, the Minister in consultation with the Chief Justice and Attorney General must vest in him with the extended jurisdiction and second, the High Court has to transfer a case to such Resident Magistrate vested with extended jurisdiction. The transfer of cases is the exclusive domain of the High Court and is done to specific magistrate and not to the court (see - Abrahman Ramadhani @Chino v. Republic [2013] TZCA 182).

The law on the subject is very much settled and the Court in Erney Gasper Asenga v. The Republic [2010] TZCA 89 held that: "(1) It is now trite law that once a form al order o f transfer has been made, the transferred appeal shall be registered in the court o f resident magistrate, given a fresh number and be heard and determined in that court , ; An appeal from a decision o f that court under those circumstances lie s directly to this Court ." "(2) It is now settled law that in the absence o f a form al order by the High Court transferring the appeal to resident m agistrate court with extended jurisdiction the proceedings before such a m agistrate and the decision therefrom are a n u llity" See also Hamis Mchachali v. The Republic [2009] TZCA 137 and Kessy Raymond Kimwaga v. Bi Moshi Omary [2020] TZCA 1778. Glancing at the judgment of the 1st appellate court, it is clear that the appeal was filed at the High Court of Tanzania at Arusha and registered as DC Civil Appeal No. 34 of 2023. The same was transferred to the Resident Magistrate's Court and registered as Misc. DC Civil Appeal No. 6 of 2023. What is missing is the transfer order and the position of

law being clear as it is, the decision of the PRM with Extended Jurisdiction is a nullity and we firmly hold so. In the circumstances, as there was no order of transfer the appeal is still with the High Court and we order the High Court of Tanzania at Arusha to proceed with the hearing of DC Civil Appeal No. 34 of 2023. DATED at ARUSHA this 6th day of May, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Ruling delivered this 7th day of May, 2026 via teleconferencing in the presence of Mr. Felichismi Baraka, learned counsel for the appellant also holding brief for Mr. Samuel Welwel, learned counsel for the respondent and Mr. Nelson Novati, Court Clerk in person is hereby of the original. t o * J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 6