Lidya Amami and Another vs Haruna Dukho (Civil Appeal No. 000007697 of 2026) [2026] TZHC 3096 (9 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA CIVIL APPEAL NO. 000007697 OF 2026 LIDYA AMAMI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF GABRIEL SULLE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS HARUNA DUKHO .............................. RESPONDENT / DEFENDANT JUDGMENT NDUMBARO, J 26/05/2026 & 09/06/2026 NDUMBARO, J The Appellants, Lidya Amami and Gabriel Sulle, bring this appeal against the judgment and decree of the District Court of Karatu pronounced on 13th March, 2026. The gist behind the matter is that the respondent herein was prosecuted for an "unnatural offence" (sodomy) in Criminal Case No. 104 of 2022 and was acquitted. Subsequently, he filed a civil claim alleging that the appellants' malicious prosecution had lowered his reputation. The trial court found the Page. 1

elements of malicious prosecution established, ruled in the respondent's favour, and went on to issue an award of Tshs. 10,000,000/- as general damages, plus 7% interest and costs. Dissatisfied with the decision, the Appellant herein moved this Court on six grounds of appeal as follows:

1. That the trial Court’s Judgment is wrong in law and fact for being reached without thorough evaluation of evidence adduced from both sides and/or proper application of the law.
2. That the trial court improperly dealt with the claims against the present second appellant, while on the online court record, judgment, decree, and proceedings in Civil Case No. 5/2023, the case was only against the first appellant.
3. That the trial Court erred in its judgment, relying heavily on the Judgment in Criminal Case No. 104/2022 before Karatu District Court, without considering that the standard of proof in criminal cases differs from that in civil cases, and that in Criminal Case No. 104/2022, the trial Magistrate did not consider evidence adduced by all witnesses.
4. That, an award of Tsh. 10,000,000/- and 7% interest to the present Respondent was not properly issued as it was made without any supporting evidence and/or without considering the entire circumstances of the case.
5. That, proceedings and findings in Civil Case No. 5/2023 are vitiated for non- compliance with section 13 of The Civil Procedure Code, Cap. 33 R.E. 2023.
6. That proceedings in Civil Case No. 5/2023 and resultant Judgment are vitiated for failure of the trial Court to conduct a meaningful mediation session before proceeding for trial. Hence, a prayer was made that the appeals be allowed with costs. When the matter was for hearing, the appellant was represented by an advocate, Felichismi Baraka, Advocate , and the respondent was self-represented . With leave of the court, the matter was disposed of by way of a written submission. Page. 2

The appellants, through their counsel, Mr Felichismi Baraka , argue that the trial court failed to distinguish between the criminal and civil standards of proof, erroneously treating the criminal acquittal as conclusive evidence of malice. They further contend that the award of Tshs. 10,000,000/- lacked a supporting evidentiary basis, particularly as the Respondent failed to prove specific financial losses. Finally, they raise a jurisdictional challenge, asserting that the suit was incompetent for non-compliance with Section 13 of the Civil Procedure Code [Cap 33 R.E. 2023] , as the Respondent failed to take bona fide steps to resolve the dispute before filing. The Respondent opposes the appeal, maintaining that the trial court properly evaluated both oral and documentary evidence. All ingredients of malicious prosecution were proved, referring to the case of Germana Benard Vs Ester Anathe Palangyo , Case No. 1759 of 2026; argued that the fact that the appellant did not agree with the trial court decision does not mean that the evidence was not evaluated and there was error in law; the trial court referred to the evidence of PW1 in the criminal matter to prove malicious prosecution. On the issue of general damage argued are awarded at the court's discretion, considering the circumstances therein, as it was stated in the case of Tanzania Saruji Cooperation Vs African Marble Co. LTD (2004) TRL 155. The applicant proved humiliation and reputation injury suffered and his acquittal, combined with evidence of the Appellants' ulterior motive (extortion), established malicious prosecution. Supported the argument with the case of Omary Salumu Vs Ministry of Natural Resources and Tourism and Page. 3

another Case No. 2983 2016 Regarding Section 13 of the CPC, the Respondent submitted that the section is couched in discretion rather than as mandatory, and its alleged non- compliance does not oust the court’s jurisdiction. Further, the matter at hand emanates from a criminal case; hence, it is distinguishable. Referring to the case of Exim Bank Tanzania LTD vs Arusha Sundries Limited and others 2026 TZCA. Further, the court mediation was concluded, and the appellant did not show how he was prejudiced by the said procedure's failure. The cited case of Emma Health Centre is distinguishable. Hence, made a prayer that the appeal be dismissed with costs. Having heard the parties' submissions, it is time for the court to consider the merit of the submissions. In determining the matter, the court will consider whether the trial court properly evaluated the evidence and applied the correct standard of proof; whether the award of costs and damages was proportionate and judicially justified; and whether failure to comply with Section 13 of the CPC renders the trial proceedings a nullity. Considering the 1 issue, it is a settled principle of law that the duty of an st appellate court is to re-evaluate and re-examine the evidence adduced at trial to reach its own conclusion, as it was stated in the case of Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021) page 9, citing a case of Standard Chartered Bank Tanzania Ltd v. National Oil Tanzania Ltd and Another, Civil Appeal No. 98 of 2008 (unreported) held that; "The law is well settled that on first Page. 4

appealthe Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court stand (Peters v Sunday Post, 1958 EA 424; William Diamonds Limited and Another v R,1970 EA 1; Okeno v R, 1972 EA 32)". Referring to the matter at hand, the trial court listed the ingredients of malicious prosecution as that the plaintiff was prosecuted; that the proceedings complained of ended in his favour; that the defendant instituted or carried out the prosecution maliciously; that there was no reasonable and probable cause for such prosecution; and that the plaintiff suffered damage as a result of such prosecution. Further critically examined independent evidence of malice as well as each ingredient. That said, I find no merit on this ground. It was the appellant's argument that the trial magistrate relied too heavily on the criminal judgment in Case No. 104/2022. Under Section 3(2)(b) of the Evidence Act [Cap 6 R.E. 2023], the standard of proof in civil matters is a preponderance of probability, which differs significantly from the criminal standard of "beyond reasonable doubt". It is my view that; in a claim for malicious prosecution, the plaintiff must cumulatively prove: (i) that the prosecution was instituted by the defendant; (ii) that it terminated in the plaintiff's favour; (iii) that it was instituted without reasonable and probable cause; and (iv) that it was motivated by malice as it was stated in the case of North Mara Gold Mine Limited vs Joseph Weroma Dominic (Civil Appeal No. 299 of 2020) [2022] TZCA 2 (26 January 2022) page 15. Upon review of the record, I find the trial magistrate correctly observed that while the criminal Page. 5

acquittal was conclusive evidence of the Respondent’s innocence under Section 48 of the Evidence Act, Cap 6 RE 2023. I consider that one of the issues observed by the trial magistrate was the unobjected testimony of the respondent herein (PW1) in the trial court that appellants demanded Tshs. 1,000,000/- to "settle" the matter before reporting it to the police suggests the trial court's evaluation of evidence was proper and grounded in the civil standard of probability. On the issue of unsupported and excessively awarded costs of Tshs. 10,000,000/. It is apparent that the court awarded general damages, which are at the discretion of the court. The position is well explained in the case of Mweha Hamis vs The Permanent Secretary, Ministry of Infrastructure and Development & Others (Civil Appeal No. 442 of 2020) [2024] TZCA 141 (29 February 2024), page 24, citing the case of Anthony Ngoo and Another v. Kitinda Kimaro [2015] T.L.R. 54 that, " The law is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. The Judge has discretion in the award of general damages ”. In the matter at hand, I noted that the trial court analysed the issue of damage and is of the view that the plaintiff, who is the respondent herein, failed to prove special damages, and the court went on to award general damages. I quote; “I took a glance to peruse the plaint presented before this court, and this where problem began due to a serious contradiction that emerged in paragraph four of the plaint; for purposes of doubt, I prefer to reproduce. Page. 6

” That, the Plaintiff claims against the Defendants the total of Tanzania shillings eight hundred million (Tsh. 8,000,000/=) as a specific damages and Tanzania shillings Two Hundred Million (200,000,000/=) being general damages suffered for malicious prosecution”. The contradiction I noticed is that the amount stated in words is different from the amount stated in figures, and uncertainty appeared in many paragraphs of the plaint as you can notice in paragraph 8(iv)(a), paragraph 9 ‘’since the Plaintiff’s claims against the Defendants is based on the tort of Malicious prosecution and claiming Loss of income to the tune of Tsh. 8,000,000/=being specific damage and Tsh 200,000,000/= being general damages and in the prayers the Defendants be ordered to pay the Plaintiff the sum of Tsh. 8,000,000/=being specific damage and Tsh 200,000/= as general damage for malicious prosecution.” It is my view that considering the Respondent suffered humiliation and reputational injury from a serious charge of sodomy, the trial court went on to award Tshs. 10,000,000/- to which I consider not high compared with the claim, as the appellants suggest. The award was a judicious exercise of discretion and is hereby upheld. On the issue oraised by appellant that no bona fide step was taken by them contrary to Section 13, CPC RE 2023, that no sincere and genuine attempts to resolve disputes out of court, citing a case of Z akiya Majid Aloyce v Bank of Africa (T) Ltd TZHC to cement his argument, on other side the respondent relies on Exim Bank (T) Ltd v Arusha Sundries Ltd TZHC, that Section 13 is intended to encourage rather than compel settlement. It is my Page. 7

view that if the legislature intended Section 13 to be a jurisdictional bar, it would have used express language such as "a suit shall not be instituted unless...". Despite the fact that the parties underwent compulsory court mediation, which was unsuccessful, I don’t think there will be miracles for the parties to resolve their issues thereafter, particularly where the dispute involves allegations of criminal an amicable settlement become impracticable. I find that non-compliance with Section 13, in this instance, does not render the proceedings a nullity. Having analysed all grounds, I find that the appeal lacks merit. The trial court properly evaluated the evidence on a preponderance of probabilities and correctly identified the presence of malice. The damages awarded were not excessive, and the trial court exercised discretion judiciously; section 13 of the CPC does not serve as an absolute jurisdictional bar in these circumstances. Accordingly, I proceed to make the following orders:

1. The Appeal is hereby dismissed in its entirety with costs.
2. The Judgment and Decree of the District Court of Karatu in Civil Case No. 5 of 2023 are upheld and confirmed . It is so ordered. Dated at ARUSHA this 9th of June 2026 . Page. 8

D. D NDUMBARO JUDGE OF THE HIGH COURT Page. 9