Mathew Mlay vs Rashid Majid Kasenga (Civil Application No. 354/17 of 2020) [2022] TZCA 3098 (31 August 2022)

MATHEW MLAY VERSUS RASHID MAJID KASENGA COURT OF APPEAL OF TANZANIA CIVIL APPLICATION NO. 354/17 OF 2020 (CORAM: MWARIJA. J.A.. KITUSL J. A. AND MAKUNGU. J.A.) (Application from the Proceedings, Ruling and Order of the High Court of Tanzania, Land Division at Dar es Salaam dated the 29th day of June, 2020 in Miscellaneous Land Application No. 573 of 2019) Civil Procedure and Practice – Leave or Certificate on points of law when approaching the Court of Appeal – circumstances that require certificate on points of law The applicant sought to invoke powers of revision under section 4 (3) of the Appellate Jurisdiction Act (the AJA) and rule 65(1), (2) and (c) of the Court of Appeal Rules, 2009 (the Rules). He mainly argued that the decision of the High Court (Makani, J.) in Miscellaneous Land Application No. 573 of 2019, denying him certification of points of law for determination by this Court, was faulty but he was barred from appealing against it, hence the resort to revision. Held : (i) The Court held that it is common ground that appeals that do not automatically lie to the Court, may only be preferred with leave or certificate on point of law. (ii) Further, a certificate on a point of law becomes a requirement when a party intends to appeal to the Court for the third time. That is, where the matter originates from the Primary Court a certificate on a point of law is a legal prerequisite under section 5 (2) (c) of the AJA.

Application was struck out. Statutory provisions referred to: (i) Section 4 (3) of the Appellate Jurisdiction Act (the AJA). (ii) Rule 65(1), (2) and (c) of the Court of Appeal Rules, 2009. Cases Laws referred to: (i) The Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 182. (ii) Lyamuya Construction Company Ltd v. The Board of Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). (iii) Tanzania Knitwear v. Shamsho Esmail [1989] T.L.R. 48 (iv) Philemon Joseph Chacha & Others v. South African Airways (Prop) Ltd & Others [2002] TLR 246. (v) Mariam Abdallah v. Adolph Mwakanyuki, Miscellaneous Land Application No. 116 of 2021. (vi) Sembeke Notira v. Ngitiri Meng'oru, Civil Appeal No. 9 of 1989 (unreported). (vii) Ndwaty Philemon Ole Saibull v. Solomon Ole Saibull [2000] T.L.R. 209. (viii) Mariam Nyangasa v. Shaban Ally Sembe, Civil Appeal No. 17 of 2019 (unreported). [TZCA 294 (18 May 2022). (ix) Marco Kimiri & Another v. Naishoki Eliau Kimiri, Civil Appeal No. 39 of 2012 (unreported). (x) Eustace Kubalyenda v. Venance Daud, Civil Appeal No. 70 of 2011 (unreported). (xi) The Executive Secretary Wakf and Trust Commission Mambomsiige Zanzibar v. Saide Salum Ambar [1991] TLR 198.