Mary Mchome Mbwambo & Amos Mbwambo vs Mbeya Cement Company Ltd (Civil Appeal No. 31 of 2024) [2025] TZCA 1224 (28 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NDIKA. J .A., FIKIRINI. J.A.. And MGEYEKWA. J.A .-> CIVIL APPEAL NO. 31 OF 2024 MARY MCHOME MBWAMBO AND AMOS MBWAMBO (The Administrators of the Estate of the Late Gilliad Mbwambo) ..................... FIRST APPELLANT MARY JO H N ............................................................... SECOND APPELLANT VERSUS MBEYA CEMENT COMPANY LTD.............................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Mbaqwa, J.^ dated the 25th day of August 2023 in Commercial Case No. 126 of 2005 JUDGMENT OF THE COURT 5 * & 28th November 2025 NDIKA. 3.A.: The appellants were unsuccessful in a lawsuit filed by the respondent in the High Court of Tanzania, Commercial Division at Dar es Salaam, seeking payment of TZS. 372,000,000.00 for cement delivered to a partnership named Kirinjiko Investment. Displeased with the outcome, they now appeal to this Court. The essential facts of this dispute are as follows: Mr. Gilliad Mbwambo and Ms. Mary John, also referred to as Ms. Mary Mchome Mbwambo, were a married couple and co-partners in the operation of Kirinjiko Investment. Mr. Mbwambo perished in a horrific car accident on i

5th January 2004, which also resulted in his wife's severe injuries, necessitating nearly six months of her hospitalisation. The respondent, a cement manufacturer and supplier located in Mbeya, asserts in the plaint that at the time of Mr. Mbwambo's demise, Kirinjiko Investment was indebted to it in the amount of TZS. 372,000,000.00, representing the purchase price for 69,800 bags of cement supplied and delivered between 14th November 2003 and 2n d January 2004, as documented in twenty- eight delivery notes (collectively recognised as exhibit PI). The cement was provided on credit in accordance with a contractual arrangement between the parties. In a bid to get the debt settled, the respondent executed a debt acknowledgement deed on 15th April 2004 (exhibit P3) with one of the deceased's children, Mr. Mbonea Mbwambo, who purportedly acted for and on behalf of Kirinjiko Investment. By that deed, Kirinjiko Investment supposedly admitted to owing the respondent TZS. 260,231,500.00 and committed to clear the debt through weekly remittances of TZS. 15,000,000.00 without fail. The money having remained unpaid, the respondent sued Ms. Mary Mchome Mbwambo and Mr. Amos Mbwambo as the administratrix and administrator, respectively, of the estate of the late Gilliad Mbwambo as well as Mary John, being the partners of Kirinjiko Investment. Apart from seeking payment of TZS. 372,000,000.00, the

respondent prayed for general damages, interest on the decretal sum and costs of the action. Through their joint written statement of defence, the appellants refuted the respondent's claim. They asserted, in paragraph 2, that: "there existed no agreement between the plaintiff [the respondent herein] and the defendants [the appellants herein] for any credit sale transactions as all sale transactions were done on cash sale basis." The appellants not only refuted the receipt of cement as per the specified delivery notes (exhibit PI) but also repudiated the alleged debt acknowledgement deed (exhibit P3), asserting that it was executed by an unauthorised individual and therefore not binding on Kirinjiko Investment or the appellants. To prove the claim, the respondent fielded its Company Secretary, Mr. Ian Lweramira Almachius (PW1), as sole witness. Besides, tendering exhibits PI and P3 as proof that the respondent supplied Kirinjiko Investment cement worth TZS. 372,000,000.00 during the material period, PW1 introduced into evidence a demand letter dated 8th March 2005 (exhibit P2) the respondent's law firm, IMMMA Advocates, served on the appellants. By that letter, the respondent sought prompt 3

settlement of TZS. 504,503,792.49 being the unpaid balance for the cement supplied to the appellants' entity. During cross-examination, PW1 conceded that exhibit P3 lacked the signature of the second appellant, Kirinjiko Investment's sole surviving partner, to validate the debt acknowledgement made by Mr. Mbonea Mbwambo. Moreover, he asserted that the respondent successfully litigated against the deceased's offspring (Alexander Mbwambo, Philip Mbwambo, and Mbonea Mbwambo) in Commercial Case No. 127 of 2005, claiming payment of TZS. 132,000,000.00 for the cement delivered from June 2004 onwards. At the behest of the appellants' counsel, the High Court's judgment dated 20th August 2007 in the respondent's favour was entered into evidence as exhibit Dl. The second appellant testified as DW1, representing both herself and the first appellant. She primarily challenged the authenticity of the delivery notes on the basis that they did not correspond with any of their office records. Secondly, she averred that the appellants were unfamiliar with the signatures on the notes. Thirdly, it was her testimony that the purported orders for cement were not placed by the appellants, who typically purchased cement on a cash basis. Fourthly, she asserted that the notes lack the official seal of Kirinjiko Investment, indicating their inauthenticity. Finally, she questioned the inconsistency of the

respondent's assertion. The debt was claimed in the plaint to be TZS. 372,000,000.00, but it was asserted to be TZS. 504,503,792.49 as per exhibit P2 as of 8th March 2005. According to exhibit P3, the debt was specified as TZS. 353,000,000.00 as of 15th April 2004. The trial court found the respondent's case compelling. Upon accepting and recognising the delivery notes (exhibit PI) as genuine and reliable, it determined that Kirinjiko Investment acquired, on credit, cement valued at TZS. 351,360,000.00, reflecting a minor decrease from the TZS. 372,000,000.00 asserted in the plaint. Ultimately, the court rendered a judgment in favour of the respondent for the specified monetary amount, including interest on the decretal sum at the court's rate of 7% from the date of judgment until full payment, together with the costs of the suit. Acting for the appellants, Mr. Daniel H. Ngudungi, learned counsel, initially lodged five grounds of appeal, which raise four complaints as follows:

1. That the evidence in support o f the respondent's claim (exhibits P2 and P3) was contradictory.

2. That the trial court wrongly held, based on exhibit D l, that there was a contractual arrangement between the parties for the supply o f cement on credit

3. That the trial court erred in law and fact for not holding that the respondent failed to prove the alleged deliveries as exhibit PI did not relate to any transactions involving the appellants.

4. That the trialjudge erred in law and in fact by shifting the burden o f proof to the appellants. With the leave of the Court, Mr. Ngudungi filed an additional ground of appeal, which for clarity, we have rephrased as follows:

5. That the trialjudge erred in law and fact for determining the suit based on his handwritten notes instead o f the official transcript o f the recorded proceedings. The additional ground highlights a fundamental concern. We propose to address it at the outset. Prior to presenting his argument on the matter, Mr. Ngudungi asserted that the trial in the High Court utilised the court's electronic recording system, making the audio recording the official record of the proceedings, from which the certified transcript was derived by the Registrar on 15th July 2025. The certified transcript is located on pages 936 to 1,041 of the record of appeal. He argued that the contested judgment, issued on 23rd August 2023, must have been formulated by the learned trial judge using his handwritten notes, which are presented on pages 823 - 837 of the appeal's record, as the official transcript was unavailable at the material time. 6

Referencing Hjordis Fammestad v. ABSA Bank Tanzania Limited & Another [2024] TZCA 829 and rules 59 and 60 of the High Court (Commercial Division) Procedure Rules, 2012, Government Notice No. 250 published on 13th July 2012 ("the Commercial Court Rules"), Mr. Ngudungi criticised the learned trial judge for relying on the notes rather than the official transcript in his judgment. He highlighted that, in contrast to the certified transcript, which exceeds 106 pages and has comprehensive and correct details of the events, the notes, extending over 16 pages, were incomplete and inaccurate. Mr. Ndanu Emmanuel, the respondent's learned counsel, provided a two-part response: first, that there was no evidence presented to demonstrate that the trial judge solely relied on the handwritten notes to adjudicate the case. Secondly, even if the court did not reference or depend on the certified transcript, it was not prohibited from making its determination solely based on the notes. He further urged us to recognise that, in the context of this case, the court primarily based its decision on exhibit PI - the delivery notes. Certainly, the Commercial Court Rules define the term "the official record" under rule 59 (1) (a) and (b) as follows: "59.-(1) An official record shall be made o f every hearing and such record shall consist o f the following:- 7

(a) in a hearing where an electronic recording system approved and managed by the Court or any other person appointed by the Court is used, the audio recording ; and (b) in a hearing where an electronic recording system is not used, the notes o f hearing recorded in such manner as the Court may determine." [Emphasis added] The above provision clearly indicates that when an electronic recording system is employed by the court, the official record of the proceedings is the audio recording. Nevertheless, the trial judge's handwritten notes serve as the official record in the absence of the electronic recording system. In this case, where the trial utilised the court's electronic recording system, the audio recording serves as the official record, despite the presiding judge concurrently taking handwritten notes of the proceedings - see Hjordis Fammestad {supra). Refer also to Zanzibar Telecom Ltd v. Petrofuel Tanzania Ltd [2019] TZCA 176 and Afriscan Group (T) Ltd v. David Joseph Mahende [2024] TZCA 370. Rule 60 of the Commercial Court Rules provides guidance on the certification of transcripts derived from audio recordings: "60.-(1) The Court shall, after the conclusion o f the case and upon request o f a party, 8

produce an official transcript o f the hearing to be provided to the parties simultaneously in soft copy at the parties'costs. (2) The parties shall proofread the transcript and make necessary corrections which shall be tracked or highlighted without altering the content o f the proceedings. (3) The parties shall submit their corrected transcripts to the Registrar and serve each other within a period o f twenty-one days from receipt o f the Registrar's transcript. (4) Where any dispute arises as to the correctness o f the transcripts verified by the parties, the aggrieved party shall notify the Registrar within a period o f seven (7) days from receipt o f the corrected transcript (5) The Registrar shall upon receipt o f notification under sub rule (4) or suo motu invite the parties to resolve any dispute by making reference to the official audio recording and his decision on such dispute shall be final. "[Emphasis added] A transcript of the official proceedings record is prepared, certified, and issued according to the above rule. After the conclusion of the case, the court must provide the parties with a soft copy of the official transcript at their expense. After receiving the transcript, each party must proofread and make necessary modifications, then submit the amended versions to

the Registrar and serve the adverse party within 21 days. The aggrieved party must notify the Registrar within seven days of receiving the amended transcript if there is a dispute over the parties' verified transcripts. After receiving such notification, the Registrar will invite the parties to resolve the dispute using the official audio recording, and the Registrar's decision is final. A transcript of the hearing's official record will be certified by the Registrar if the parties submit amended transcripts or fail to do so. It has been established in the instant case that the audio recording serves as the official record, as the trial was conducted using the court's electronic recording system. Conversely, the handwritten notes taken by the learned judge during the hearings are not deemed official. Nonetheless, we find Mr. Ngudungi's assertion perplexing, as he contends that the official transcript, certified by the Registrar on 15th July 2025, which was nearly two years after the disputed judgment rendered on 23r d August 2023, implies that the learned trial judge must have relied on an unofficial record of proceedings in formulating his judgment. We consider this assertion to be speculative and fanciful. The official transcript may be designated as approved and issued on 15th July 2025; however, this does not imply that it did not exist prior to that date. Furthermore, in addition to his handwritten notes, we believe that the learned trial judge had unrestricted access to the audio recording of the proceedings, which,

according to rule 59 (1) (a) of the Commercial Court Rules, constituted the official record in this instance. The above apart, even if one were to assume for the sake of argument that the disputed judgment relied on an unofficial record of proceedings, Mr. Ngudungi could not, upon our inquiry, demonstrate whether that situation was detrimental to the appellant. In attempting the impossible, he was unable to identify aspects of the case that the learned trial judge neglected to consider due to the purported incompleteness of the record. Consequently, it is our determination that the ground of appeal at hand lacks merit We now propose to deal with the third ground of appeal. The contest here is whether the respondent established that it supplied and delivered cement to Kirinjiko Investment on credit, and if so, what its value is. If the first issue is answered affirmatively, the second question would be whether the purchase price was fully paid. It is imperative, at the outset, to note that, in addressing the above issues as the first appellate court, rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009 requires the Court to re-evaluate the evidence and make its own inferences and factual determinations while respecting the trial court's advantage of observing and evaluating the witnesses. See i i

D.R. Pandya v. R. [1957] EA 336 and Jamal A. Tamim v. Felix Francis Mkosamali and Another [2013] TZCA 2327. In resolving whether the alleged deliveries were made, the learned trial judge reasoned as follows: "I have carefully reviewed and considered the pleadings, witness statements, exhibits tendered particularly exhibit PI and arrived at the finding that the plaintiff [now the respondent] supplied cement to the defendants [now the appellants] on credit to the tune o f TZS. 351,360,000.00 and not TZS. 372,000,000.00 as claimed in the plaint. It should be noted that the whole transaction traces its genesis from exhibit PI which are delivery notes. Therefore, after careful perusal o f exhibit PI, I have noted that, the total amount established through the tendered delivery notes (exhibit PI) is TZS. 351,360,000.00 and the argument that the amount claimed does not tally with the amount claimed in the plaint cannot exonerate the defendants' indebtedness to the plaintiff ...." The above reasoning is predicated on the assumption that the delivery notes were completely accurate and reliable. We consider that hypothesis to be quite tenuous, if not fundamentally incorrect. Despite each delivery note containing essential details such as the quantity of 12

cement purportedly supplied, the official stamp of the respondent, references to the order supposedly placed by Kirinjiko Investment, the signature and name of the individual who allegedly received the consignment, and a "DELIVERED" stamp indicating delivery, it is noteworthy that the official stamp of Kirinjiko Investment is missing. The trial judge did not address this aspect. The lack of the official stamp indicates a potential lack of authenticity in the notes. It has come to our attention that Mr. Emmanuel argued on behalf of the respondent that the "DELIVERED" stamp was applied to each note by the receiving officer of Kirinjiko Investment. No evidence supporting that claim was found in the records. Since the appellants rejected the delivery notes in their written statement of defence, the burden was on the respondent to demonstrate, among other things, that the claimed consignments were delivered to Kirinjiko Investment through the individuals specified in the delivery notes (Katoberi Anthony, Charles Zakaria, and Ernest Musa). DW1, the respondent's witness, conceded in cross-examination that he had no proof of the identities of the said individuals to link them with Kirinjiko Investment as its officers. It is important to observe that, since the transactions between the parties were executed on credit terms as claimed by the respondent, a reasonable individual would expect the respondent to present a thorough 13

documentation trail to support its assertion for the payment of the outstanding amounts. The existence of such a paper trail would significantly contribute to the validation of the delivery notes on record. Therefore, for every consignment that is alleged to have been delivered, it is essential to have a corresponding purchase order issued by Kirinjiko Investment, along with a tax invoice that requests payment for the cement supplied. The delivery notes (exhibit PI) included the respective purchase order numbers; however, none of the orders were tendered in evidence. In a comparable manner, the respondent failed to provide any of the matching tax invoices throughout the trial proceedings. This regrettable situation lacked any justification. The respondent's witness indicated, as evinced on page 829 of the appeal's record, that: "Kirinjiko was instructing us to deliver [cement] at a certain place. I came to know this through documentation in the office. I have [no] order that was [placed] by Kirinjiko Investment. I have no invoice that we once issued to the defendants." In the circumstances, we conclude that the trial court erred in relying on exhibit PI. On this basis, we hold that the respondent failed to establish that it supplied and delivered cement to Kirinjiko Investment on credit.

What now comes up for resolution is the question whether the appellants owe the respondent money as indicated in exhibit P3. By that document, it is alleged that Kirinjiko Investment admitted to owing the respondent TZS. TZS. 260,231,500.00 (of TZS. 353,000,000.00 claimed by the respondent) and committed to clear the debt through weekly remittances of TZS. 15,000,000.00 without fail. Whereas Mr. Ngudungi keenly argued that the document was not binding on Kirinjiko Investment because it was made by an unauthorised person and that it was not ratified by the second appellant as the sole surviving partner, Mr. Emmanuel took the contrary position and urged us to hold Kirinjiko Investment liable on it. It is in the evidence that following the demise of Mr. Gilliad Mbwambo on 5thJanuary 2004, the only surviving partner was the second appellant who then remained hospitalised for six month. It was not disputed that when exhibit P3 was executed on 15th April 2004 between her son, Mr. Mbonea Mbwambo, and the respondent, the former claiming to be acting for Kirinjiko Investment, she was unaware of it. She maintained that Mr. Mbonea Mbwambo was unauthorised to act for the firm and that she did not ratify the deed at any point after she was discharged from hospital.

It is settled that only a partner can act as an agent of the partnership to bind the firm or his other partners. Indeed, that it is the letter and spirit of section 201 (1) of the Law of Contract Act, Cap. 433 ("the LCA"), which provides thus: "Everypartner is an agent o f the firm and his other partners for the purpose o f the business o f the partnership; and the acts o f every partner who does any act for carrying on in the usual way o f business o f the kind carried on by the firm bind the firm and his partners, unless, the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority or does not know or believe him to be a partner." Given that Mr. Mbonea Mbwambo was not a partner of Kirinjiko Investment during the relevant period, we concur with Mr. Ngudungi's argument that he did not possess the authority to execute the deed on behalf of the firm and thereby bind it. Furthermore, considering that the second appellant, as the only surviving partner, did not ratify or confirm the deed at any time following its execution, the instrument remained non-binding on the firm. It was claimed by the respondent that Mr. Mbonea Mbwambo and his two brothers purportedly represented themselves as having the 16

authority to act on behalf of the firm and sought to continue its operations following their father's death and their mother's extended hospitalisation. The deed was executed contingent upon their commitment to repay the pre-existing debt in instalments to qualify for additional credit purchases of cement. According to section 206 of the LCA, Mr. Mbonea Mbwambo may, theoretically, be personally accountable to the respondent for misrepresenting himself as a partner despite not being one. That provision stipulates that: "Everyone who by words spoken or written or by conduct represents himself, or who knowingly suffers himself to be represented, as a partner in a particular firm, is liable as a partner to anyone who has on the faith o f any such representation given credit to the firm, whether the representation has or has not been made or communicated to the person so giving credit by or with the knowledge o f the apparent partner making the representation or suffering it to be made: Provided that, where, after a partner's death, the partnership business is continued in the old firm's name, the continued use o f that name or o f the deceased partner's name as part thereof shall not o f itself make his executors or administrators' estate or effects liable for any partnership debts contracted after his death. "[Emphasis added] 17

The above provision imposes liability on a person who, by words, actions or conduct, holds himself out, or suffers himself to be represented, as a partner in a particular firm, to anyone who has given credit to the firm on the faith of any such representation whether the representation has or has not been made or communicated to the person so giving credit by or with the knowledge of the apparent partner making the representation. In the present instance, it is in the evidence that the said Mr. Mbonea Mbwambo allegedly held himself out as a person with authority to act for and on behalf of Kirinjiko Investment. We are acutely cognisant that he is not a party to this proceeding, meaning that he was not heard on the issue at hand at the trial or before us. We cannot condemn him unheard. But in any event, whatever words, actions or conduct that induced the respondent to execute exhibit P3 with Mr. Mbonea Mbwambo supposedly on the behalf of Kirinjiko Investment do not ultimately bind the firm or the appellants. On this basis, we conclude that the appellants are not liable upon exhibit P3. As a result, we find merit in the third ground of appeal. In our view, the outcome on the third ground of appeal is dispositive of the appeal rendering the rest of the appellants' complaints academic. There is no need to consider and resolve them. 18

Consequently, we allow the appeal with costs and proceed to quash the High Court's judgment and set aside the corresponding decree. DATED at DAR ES SALAAM this 27th day of November 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 28th day of November, 2025 in the presence of Emanuel Ndanu, learned counsel for the Respondent also holding brief for Mr. Daniel Ngudungi, learned counsel for the Appellant and Janekisa 19