Mar-Kim Chemicals Company Limited vs Gadgetronix.Net Limited (Civil Appeal No. 76 of 2023) [2025] TZCA 1150 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: LILA. J.A., FIKIRINI J.A. And RUMANYIKA. J.A.T CIVIL APPEAL NO. 76 OF 2023 MAR-KIM CHEMICALS COMPANY LIMITED ................................. APPELLANT VERSUS GADGETRONIX. NET LIMITED .................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Arusha) (Sehel. J.T dated the 29th day of October, 2018 in Commercial Case No. 5 of 2017 JUDGMENT OF THE COURT 8th & 17th October, 2025 RUMANYIKA. 3. A.: Sometimes in May, 2016, the parties executed a sale agreement between them. The appellant, Mar-Kim Chemical Co. Ltd was contacted to supply a 230 KVA Perkins Generator (the generator) to the respondent for USD 53,690.00, which was dully paid. The appellant supplied the generator to the respondent which the latter ferried to and installed at her work premises within Serengeti National Park at Tanganyika

Wilderness Camps, to run among others, some washing machines. However, it is alleged that the generator operated to as late as on 25th May, 2017 when it blew up. According to the report (exhibit P4) it turned out to be of less capacity of 180KVA which would carry a maximum load of 144KW. That it was unknowingly loaded with machines of 212.5KVA capacity thereby causing damage, on a belief that it was 230KVA. It was further asserted that, upon being approached, the appellant refused to replace it or refund the respondent. That instead, the respondent procured another generator for TZS. 5,400,000.00 to run her business. She successfully sued the appellant vide Commercial Case No. 5 of 2017 before the High Court of Tanzania ("the trial court") for breach of contract under the Sale of Goods Act Cap. 214 ("the SGA"). Her claim was for refund of the purchase price of the generator, transport costs, general damages, interest, and costs of the case. In support of her claims, the respondent had one Hassanain Sajjad Sajan (PW1) who testified to have purchased a 230KVA generator from the appellant for USD 53,690.00. He added that, they ferried it to Serengeti National Park believing it is of 230KVA capacity as agreed which turned out to be of under capacity of 180KVA. And that on that ground it blew up causing damage to the respondent's machines hence the suit,

subject of the appeal. Loshi Ngamelo Mellyani (PW2) who installed the generator told the court that, when it blew-up he inspected it and found out that it is not 230KVA but of 180KVA capacity. Edmundi Kuzengwa (DW1) is the one who prepared the Delivery Note (exhibit P3) on behalf of the appellant. That upon its inspection later, it was established to be 180KVA and not 230KVA. Based on the evidence adduced and physical inspection of the generator done by her, on Court compound, on 6th June, 2018 in terms of section 62(2) of the Evidence Act, the learned trial Judge decided in favor of the respondent. She held that the generator was not of the agreed capacity of 230KVA but 180KVA. As a result, the respondent was awarded USD 53,690.00 being refund of the purchase price plus interests and costs of the suit. Aggrieved by that decision, the appellant has fronted before us five points of grievance which are paraphrased as follows; (i) the learned trial Judge's findings are against the evidence (ii) the learned trial Judge wrongly relayed on physical details of a generator which was not admitted in evidence as an exhibit (iii) the generator was improperly produced in court; (iv) improper court analysis on the Delivery Note (exhibit P3) resulting into wrong conclusion (v) the learned trial Judge's finding that the generator was neither inspected nor accepted by the respondent.

On the scheduled hearing of the appeal, Mr. Sabato Ngogo, learned counsel represented the appellant. The respondent had the services of Messrs. Salimu Mushi and Rodgers Mlacha, both learned counsel. Mr. Ngogo began by adopting the appellant's written submission filed 23r d June, 2023 and one case law in the list of authorities filed on 3r d October, 2025 to form part of his submission. He argued grounds (i) and (iv) conjointly contending that, the generator supplied to the respondent on 14th June, 2016 was of the agreed capacity of 230KVA and duly accepted. He gave reasons for his contention; One, that it is not disputed that one Shaaban Selemani signed the respective Delivery Note (exhibit P3) on behalf of the respondent exhibiting its acceptance, two, that the generator was installed by the respondent's own technician without registering any complaint and three, that the respondent remained with the generator under her use and control for eleven months consecutively without any reservation. According to Mr. Ngogo, therefore, three issues arise; (a) whether the respondent accepted the generator, (b) whether the generator was 230KVA as agreed and (c) whether it was proper for the learned trial Judge to arrive at the decision relying on the generator which was not admitted in evidence as exhibit.

As such, Mr. Ngogo contended that, the learned trial Judge's finding that the generator does not meet the agreed terms and conditions is against the evidence on record. The reality on the ground, he argued, the learned trial Judge did not consider the fact that one Shaban Selemani had signed the respective Delivery Note (exhibit P3) on behalf of the respondent on 14th June, 2016 signifying acceptance of the generator. Therefore, Mr. Ngogo added, the alleged mishap of the generator which was reported eleven months later on 25th May, 2017, that it is of 180KVA and not of the agreed 230KVA is an afterthought. He added that, the complaint is also inconsistent with the corresponding Invoice irrespective of the report on examination (exhibit P4) that the generator blew up for being overloaded on a belief that it would be of the agreed specifications. On the 2n d and 3r d grounds of appeal, it is recalled, Mr. Ngogo faulted the trial Judge for having examined the generator which was not admitted in evidence as exhibit causing it to count on her decision. And that the trial Judge's inspection and findings that the generator is of the agreed capacity of 180KVA contravened section 62(2) of the Evidence Act Cap 6. It is so, he added, because there had been no order for production of that generator in court as an exhibit. It was further argued that, the learned trial Judge improperly relied on it prematurely arriving at the

decision. That, by doing so, not only the learned trial Judge reduced herself into a witness causing miscarriage of injustice on the part of the appellant, but also, her move contravened Order XIII rule 7 (1) (2) of the Civil Procedure Code Cap. 33 ("the CPC"). He cited the Court's decisions in Ms. SDVTransami (Tanzania) Ltd v. Ms. STE DACTO (Civil Appeal 16 of 2011) [2019] TZCA 565 (18 June 2019; TanzLII and Japan International Corporation Agency (JICA) v. Khaki Complex Ltd [2006] T. L. R. 343 to fortify his point. With regard to the 5th ground of appeal, about the generator having not been inspected by the respondent, again Mr. Ngogo contended that, the learned trial Judge improperly evaluated the respective evidence. He argued that, the respondent's complaint that she neither inspected the generator supplied nor accepted it, is an afterthought. In that regard, Mr. Ngogo cited the Court's decision in Astepro Investment Co. Ltd. v. Jawinga Co. Ltd. (Civil Appeal 8 of 2015) [2018] TZCA 278 (30 October 2018; TanzLII) to seal his contention that parties are bounded by their own pleadings. On that account, therefore, Mr. Ngogo urged the Court to nullify the proceedings and set aside the subsequent decision in terms of section 6(2) of the Appellate Jurisdiction Act, Cap. 441 ("the AJA") as all was founded on the mishandled evidence.

Replying to Mr. Ngogo's submission on the 1s t and 4th grounds of appeal, Mr. Mushi stoutly opposed the appeal for being misconceived and thus, liable to be dismissed. He contended that, the appellant's complaints are not supported by evidence. Expounding on that, Mr. Mushi argued that, the respondent's representative one Shaban Selemani may have signed the respective Delivery Note (exhibit P3) accepting the generator but the fact remains to be that he did not inspect it to verify its capacity. And that, the said omission could not necessarily infer negligence on the part of the respondent. He added that actually the latter received a 180KVA generator instead of the agreed 230KVA, which the appellant did not disprove. Additionally, Mr. Mushi contended that, the appellant did not really prove to have supplied the agreed 230KVA generator as purported in the respective Delivery Note. It is so, he argued, because DW1 in his evidence admitted to have subsequently inspected the blown up generator confirming it to be of 180KVA and not 230KVA capacity. It was therefore asserted that, exhibit P3 is not tenable in the circumstances of the case except the inspection report (exhibit P4) which shows that, for the reason of the respondent being misled, the generator was blown up as it was of 180KVA instead of the agreed 230KVA capacity.

For the 1s t complaint, it was Mr. Mlacha's turn to air his submission. He argued them conjointly contending that, really, the generator supplied was not admitted in evidence as an exhibit forming part of the record. Nevertheless, he argued that the learned trial Judge rightly verified the evidence of PW1 and PW2 as she inspected the generator accordingly and so remarked in terms of section 62 (2) of the Evidence Act. In that regard, Mr. Mlacha referred us to Sarkar's Law of Evidence 17th Edition, where the Prominent Writer interpreted section 60 of the Indian Evidence Act. Notably, this section is pari materia with our section 62 (2) of the Evidence Act under scrutiny. Therefore, he argued, tendering of the generator as an exhibit was uncalled for in the circumstances of the case as the learned trial Judge cannot be faulted to act as she did. He therefore implored us to dismiss the 2n d and 3r d complaints. Further on the 5th complaint, Mr. Mlacha contended that, the learned trial Judge was right in holding that the generator was not inspected. That whether or not the complaint was raised before is immaterial, as it is exceptional to the legal principal that parties are bound by their own pleadings. It was also asserted that, as a matter of fact, the respondent did not act negligently in not inspecting the generator before it turned out to be of the less capacity of 180KVA. As such, Mr. Mlacha beseeched us

to also dismiss the 5th complaint and, the entire appeal for want of merit with costs. Upon hearing the rival submissions by the parties' learned counsel, and having examined the record critically, we shall conveniently begin with ground 2 of appeal, that although the generator was not admitted as an exhibit, yet it was relied upon by the trial court. Mr. Mlacha referred us to the renowned author Sarkar, on pages 133 and 134 of his book Sarka's Law o f Evidence in India, Pakistan , Bangladesh , Burma, Ceylon, Malaysia & Singapore, SC Sarkar, Malaysian Edition, Volume III, Lexis Nexis Malaysia Sdn Bhd, 2016. We note that, the primary purpose of inspection of documentary evidence under section 62(2) of the Evidence Act is not farfetched. It is to assist the court to further understand the evidence already presented before him. Nonetheless, it is not that kind of evidence which can form basis of a decision without being tested by allowing the parties the right, if need be, to cross-examine. Notably in the present case, the learned judge at the location inspection considered the exterior features of the generator against those on the Delivery Note (exhibit P3). Then she concluded that, the respondent was not supplied with a 230KVA generator as alleged. With respect, the procedure under section 62(2) of the Evidence Act was flawed for two main reasons; One,

the record is silent as to whether there was an order for the production of the generator in court as exhibit and two, nothing on record suggests that the trial Judges' observations were made known to the parties for them to respond. In essence, it cannot be said, for sure that in terms of capacity the generator presented in the court was the same as what was supplied by the appellant to the respondent previously. Without prejudice to the foregoing decision, we note that, the parties locked horns on the interpretation of section 37 of the Sales of Goods Act, Cap 214 (the SGA). The section reads; "The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership o f the seller, or when, after the lapse o f a reasonable time, he retains the goods without intimating to the seller that he has rejected them." (Emphasis added) It is apparent to us in the instant case, as observed earlier on, that the respective Delivery Note (exhibit P3) which was prepared by Edmund Kuzengwa (DW1) was signed by one Shaban Selemani for the respondent on the 14th June, 2016 and this evidence was not controverted. Similarly, upon accepting it the generator remained under use and control of the

respondent for a period of eleven months without reservation. As such, the respondent is deemed to have accepted the generator as being of the agreed specifications and quality as per the respective Delivery Note. In that regard, we are highly persuaded by the decision in Kanti Printing Works v. Tanga District Council (1970) H.C.D 237. Noteworthy, the legal principle that he who alleges must prove remains in force. In this case, for the respondent's complaint that the generator did not meet the agreed specifications leading to its mishap, burden of proof lies on the respondent. See- Sure Freight Tanzania Ltd v. XCMG Tanzania Ltd (Civil Appeal No. 101 of 2020) [2023] TZCA 17286 (31 May 2023; TanzLII). As such, the respondent's evidence did not meet that threshold. More significantly, is the Common Law principle of Buyer Beware, caveat emptor. This doctrine applies exactly against the respondent for the following undisputed facts; One, one Shaban Selemani signed the respective Delivery Note (exhibit PW3) showing that the respondent received a generator of 230KVA as agreed, two, the generator remained under the respondent's use and control about eleven good months without any reservation, three, after such long use by the respondent and the alleged blew up generator, the respondent's engineer/technician

inspected it in the back of the supplier applicant. The latter could not have an opportunity to comment and or confirm it, four, the respondent did not sufficiently show that she was denied an opportunity to exercise her right of intermediate chance to inspect the generator at the earliest possible opportunity, in terms of sections 15 and 36 (1) and (2) of the SGA. Therefore, the 1s t, 3rd , 4th and 5th grounds of appeal are unmerited and dismissed. Without prejudice to the foregoing, the respondent may have acted so with ultimate good faith. Nonetheless, her conduct was inconsistent with the basic requirement of the SGA as observed before. As such, the moment the appellant delivered the generator to the respondent on 14th June, 2016, she became "home and dry". Therefore, we agree with Mr. Ngogo's contention that, the respondent's complaint about eleven months later that the generator supplied is of less capacity is an afterthought and untenable. If anything, the respondent is to blame for having demonstrated negligence of the highest order. It is for the foregoing reasons that we decline to nullify the proceedings based on the alleged mishandling of evidence by the trial court which is not forth coming. We also set aside the order for refund of USD 53,690.00

In view of the foregoing, therefore, the appeal is hereby allowed with costs. DATED at ARUSHA this 17th day of October, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 17th day of October, 2025 in the presence of Mr. Sabato Ngogo, learned counsel for the Appellant, Mr. Salimu Jua Mushi, learned counsel for the respondent and Ms. Hilda Mcharo, Court Clerk via virtual Court is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL