Neema Zakaria vs Abdon Thadei Mboya (Land Appeal No. 000011558 of 2024) [2026] TZHC 3104 (6 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA LAND APPEAL NO. 000011558 OF 2024 NEEMA ZAKARIA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ABDON THADEI MBOYA .............................. RESPONDENT / DEFENDANT JUDGMENT BADE, J 22/04/2026 & 06/06/2026 This appeal emanates from the judgment of the District Land and Housing Tribunal for Arusha in Land Application No. 234 of 2018 delivered on 15 April 2024. The respondent instituted a suit before the tribunal claiming that he is the lawful owner of a parcel of land measuring 2.5 x 18 metres situated at Sinoni Daraja Mbili Ward in Arusha Region. According to the respondent, the suit land borders Mzee Mairo on the northern side, road on the eastern side, street road on the southern side and the appellant on the western side. Page. 1

The respondent claimed that he had owned and occupied the land since 1993. He further claimed that the appellant became his neighbour on the western side after he had already purchased and occupied his land. It was his case that although he had erected a building on his land, he deliberately left some space for future use and security purposes, which later became the disputed area. He alleged that in 2016 the appellant erected a building and in the process trespassed into his land measuring 2.5 x 18 metres. According to him, despite being warned about the alleged encroachment, the appellant ignored the warning and continued with construction. The respondent further claimed that the appellant’s construction interfered with his land and damaged a wall supporting his house. He also alleged that after he erected a wall on the remaining portion for security purposes, the appellant together with her children demolished it while claiming ownership of the disputed portion. The appellant resisted the claim. She admitted that she was the respondent’s neighbour on the eastern side but denied trespassing into his land. Her position before the tribunal was that she lawfully purchased her land measuring 22 x 22 metres from one Andrea Larubare Kivuyo on 19 July 2000 and that she had developed the same without encroaching into the respondent’s property. Page. 2

After hearing evidence from both parties and conducting a visit to locus in quo, the tribunal found that the appellant had trespassed into the respondent’s land by one metre. The tribunal accordingly entered judgment in favour of the respondent and ordered the appellant to pay costs of the suit. Being dissatisfied with that decision, the appellant lodged the present appeal advancing several grounds of appeal which, in substance, complain that the tribunal failed to properly record the assessors’ opinion; failed to properly analyse the oral and documentary evidence; failed to properly measure the disputed land during the visit to locus in quo; improperly continued with proceedings after the death of one assessor; and failed to properly record day to day proceedings and activities conducted during the visit to locus in quo. The appeal was disposed of by way of written submissions. The appellant appeared in person while the respondent was represented by Mr. Edwin Silayo, learned advocate. In support of the appeal, the appellant submitted that the tribunal erred by failing to properly record the assessors’ opinions in the proceedings. She argued that assessors play an important statutory advisory role in land proceedings and that failure to properly record their opinions constituted a serious procedural irregularity. In support of that position, she relied on sections 23(2) and 24 of the Land Disputes Courts Act [Cap. 216 R.E. 2023]. Referring to page 34 of the proceedings where it was recorded that the matter Page. 3

had been adjourned for parties to be read the assessors’ opinions, the appellant argued that the actual opinion itself was never reflected in the proceedings. The appellant further submitted that the tribunal failed to properly evaluate the evidence before it. She argued that although the respondent amended his application by removing the reference to one metre and insisting on encroachment over 2.5 metres, the tribunal nevertheless concluded that encroachment was only one metre without properly explaining how that conclusion was reached. In support of her argument regarding the duty of the appellate court to re-evaluate evidence, she relied on the cases of Selle & Another vs Associated Motor Boat Co. Ltd [1968] EA 123 and Peters vs Sunday Post Ltd [1958] EA 424. The appellant also argued that since the dispute substantially concerned measurements and dimensions of land, the tribunal had a duty to properly measure the disputed portion during the visit to locus in quo. She referred this court to the proceedings relating to the locus visit and maintained that the measurements were not properly undertaken or sufficiently recorded. On the issue of assessors, the appellant submitted that the tribunal became improperly constituted after one assessor died during the pendency of the proceedings. According to her, section 23(1) of the Land Disputes Courts Act requires the tribunal to sit with not less than two assessors and therefore Page. 4

proceedings ought to have been suspended until another assessor was appointed. In support of that submission, she cited the case of Daudi Hagha vs Salum Ngezi & Another , Civil Appeal No. 638 of 2021. The appellant further complained that the proceedings failed to properly record the activities conducted during the visit to locus in quo. She argued that the record did not sufficiently show what transpired during the visit, how measurements were undertaken or the extent to which the deceased assessor had participated in the proceedings before his death. In opposing the appeal, Mr. Edwin Silayo, learned advocate for the respondent, submitted that the proceedings clearly demonstrated that the assessors rendered their opinions and that those opinions were duly read before the parties in accordance with the law. Referring this court to page 34 of the proceedings, learned counsel argued that the law does not require verbatim reproduction of the assessors’ opinions in the proceedings once such opinions are submitted in writing. He further submitted that the tribunal expressly considered the assessor’s opinion in arriving at the final decision. In support of that position, he relied on the case of Wambura Mwikwabe vs Juma Nyamhanga, Civil Appeal No. 158 of 2022. On the complaint relating to evaluation of evidence, Mr. Silayo submitted that although the respondent amended his pleadings from one metre to 2.5 metres, the tribunal conducted measurements at the locus in quo and established that Page. 5

the appellant had in fact encroached upon the respondent’s land by one metre only. According to learned counsel, the tribunal’s conclusion was therefore based on what was physically established at the locus visit. Learned counsel further argued that the respondent’s land was capable of being measured because its dimensions and boundaries were expressly indicated in the sale agreement, unlike the appellant’s documents which did not sufficiently specify boundaries. He maintained that after the respondent surrendered part of his land for road access, the tribunal physically established that the remaining land measured 32.1 metres in length and 26 metres in width up to the appellant’s building, thereby confirming the encroachment. With regard to the death of one assessor, learned counsel argued that the law permits continuation of proceedings where one assessor subsequently becomes unavailable after proceedings had already properly commenced. He relied on section 23(3) of the Land Disputes Courts Act and the case of Condrandina Undole vs Julieth Kombe & 2 Others , Land Appeal No. 146 of 2020, where the court held that proceedings do not become invalid merely because an assessor later becomes unavailable during the course of hearing. On the complaint relating to the visit to locus in quo, Mr. Silayo submitted that the proceedings sufficiently recorded what transpired during the visit. He argued that the tribunal properly visited the disputed land, observed the boundaries and measurements, and recorded the activities undertaken thereat. Page. 6

According to learned counsel, the appellant failed to demonstrate any prejudice occasioned by the manner in which the proceedings were recorded. Having carefully considered the record of appeal, the judgment of the tribunal, the grounds of appeal and the rival submissions by the parties, I am of the considered view that the appeal may conveniently be determined on the following two broad issues:

1. Whether the tribunal properly complied with the law relating to assessors and the composition of the tribunal during the hearing and determination of the dispute.
2. Whether the tribunal properly evaluated the evidence relating to the disputed measurements and whether the finding that the appellant encroached upon the respondent’s land by one metre was supported by the evidence and proceedings conducted during the visit to locus in quo. Being a first appellate court, this court is under a duty to revisit, re-evaluate and re-analyse the entire evidence on record and arrive at its own independent conclusions while bearing in mind that it did not have the opportunity of seeing and hearing the witnesses testify. The principles governing the duty of a first appellate court were stated in Selle & Another vs Associated Motor Boat Co. Ltd [1968] EA 123 and Peters vs Sunday Post Ltd [1958] EA 424. Likewise, the Court of Appeal in Ombeni Kimaro vs Joseph Mishili t/a Catholic Charismatic Renewal, Civil Appeal No. 33 of 2017 reiterated that a Page. 7

first appellate court has power to re-evaluate and re-analyse the evidence and come up with its own findings. Starting with the first issue concerning assessors and the composition of the tribunal, I have carefully considered the complaints raised by the appellant together with the relevant proceedings and the applicable law. The appellant’s first complaint was that the tribunal failed to properly record the assessors’ opinions. I have revisited the proceedings at page 34 of the record where it is stated that the matter was adjourned for purposes of parties being read the assessor’s opinion. It is true that the actual contents of the assessor’s opinion were not reproduced verbatim in the proceedings. However, I do not agree with the appellant that such omission, by itself, rendered the proceedings defective. The law does not require the tribunal to reproduce afresh in the proceedings the contents of an assessor’s written opinion where such opinion has already been submitted in writing. What is important is whether the proceedings sufficiently acknowledge that the opinion was rendered and whether the chairperson judicially considered the same before arriving at the final decision. In the instant matter, the proceedings clearly acknowledge the existence and reading of the assessor’s opinion. More importantly, the judgment itself demonstrates that the chairperson took into account the assessor’s opinion before reaching the final determination. I therefore find no merit in the Page. 8

complaint that the proceedings became defective merely because the assessor’s written opinion was not copied verbatim into the proceedings. The appellant also challenged the legality of the proceedings on the ground that one assessor died before conclusion of the matter. According to the appellant, once one assessor became unavailable, the tribunal ceased to be properly constituted under section 23(1) of the Land Disputes Courts Act [Cap. 216 R.E. 2023]. I have carefully considered that submission together with section 23 of the Act and the authorities cited by the parties. There is no dispute that the proceedings initially commenced before a properly constituted tribunal comprising the chairperson and two assessors. The record further discloses that one assessor subsequently passed away during the pendency of the proceedings. In my considered view, the mere subsequent absence or death of one assessor after proceedings have substantially commenced does not automatically invalidate the proceedings. Section 23(3) of the Act recognizes circumstances under which proceedings may continue notwithstanding subsequent unavailability of an assessor. The important consideration is whether the tribunal was initially properly constituted and whether the subsequent absence was sufficiently explained on record. Page. 9

In the present matter, the record clearly discloses that one assessor died during the course of proceedings and the tribunal proceeded with the remaining assessor. The chairperson also acknowledged and considered the opinion of the remaining assessor in the final judgment. I therefore find no illegality capable of vitiating the proceedings on account of the subsequent absence of one assessor. The first issue therefore fails. I now turn to the second issue, namely whether the tribunal properly evaluated the evidence relating to the disputed measurements and whether the finding that the appellant encroached upon the respondent’s land by one metre was supported by the evidence and proceedings conducted during the visit to locus in quo. The dispute before the tribunal was fundamentally a boundary and measurement dispute. The respondent’s complaint was not merely that the appellant was his neighbour, but that she had encroached into a specific portion of land allegedly measuring 2.5 x 18 metres. Indeed, the record shows that during the proceedings the respondent amended his pleadings by removing the earlier reference to one metre and insisting on the dimensions pleaded in the application. It follows therefore that the central evidentiary question before the tribunal was the precise extent of the alleged encroachment and the factual basis Page. 10

upon which such encroachment could be established. I have carefully revisited the proceedings recorded during the visit to locus in quo. The proceedings disclose that both parties pointed out the disputed area and narrated their respective positions before the tribunal. The respondent maintained that after surrendering part of his land for road access, the remaining land measured 32.1 metres in length and 26 metres in width up to the appellant’s building. The appellant, on the other hand, maintained that her own land measured 22 x 22 metres and denied encroaching into the respondent’s land. The proceedings however do not sufficiently disclose the actual process through which the tribunal arrived at the precise conclusion that the appellant had encroached upon the respondent’s land by one metre. A visit to locus in quo is not a casual exercise detached from judicial proceedings. It forms part of the evidentiary process intended to assist the court appreciate and verify the facts in dispute. In Sarah Diotrephes Mmari vs M/S ASM (T) Ltd, Civil Appeal No. 224 of 2022, the Court of Appeal outlined the proper approach and procedure to be followed during a visit to locus in quo in the following terms: “When a visit to a locus in quo is necessary or appropriate and as we have said, this should only be necessary in exceptional cases the court should attend with the parties and their advocate if any, and with such witness as Page. 11

may have to testify in that particular matter. When the court re-assembles in the court room, all such notes should be read out to the parties and their advocate, and their comments, amendments or objection called for and if necessary incorporated. Witness then has to give evidence of all those facts if they are relevant and the court only refers to the notes in order to understand or relate to the evidence in court given by witnesses”. Likewise, in Nizar vs Gulamali Fazal Janmohamed , it was emphasized that the purpose of a locus visit is to assist the court appreciate evidence already before it and not to substitute formal proof with undisclosed impressions. The guidance in Avit Thaddeus Massawe equally underscores the importance of certainty in identifying and verifying disputed land before adverse findings relating to ownership or encroachment are made. The principle emerging from Kimonidimitri Mantheakis vs Ally Azim Dewji is equally instructive that matters observed and relied upon during a locus visit ought to sufficiently appear on record so as to permit meaningful appellate scrutiny. Applying those principles to the present matter, I find substantial difficulty in tracing the evidentiary path through which the tribunal arrived at the finding of one metre encroachment. The proceedings do not disclose who conducted the measurements, what measuring instrument was used, the fixed points from which measurements commenced, or how the tribunal reconciled the respondent’s pleaded dimensions of 2.5 metres with the eventual finding of Page. 12

one metre. Equally, although the proceedings record narrative explanations by the parties during the locus visit, the record does not sufficiently disclose the tribunal’s own observations and independent verification process. Neither do they disclose whether any witness evidence was formally taken during the locus visit or whether the factual matters demonstrated thereat were subsequently subjected to evidentiary scrutiny in court in the manner contemplated in Sarah Diotrephes (supra). The appellate court is therefore left unable to clearly discern whether the tribunal independently verified the alleged encroachment or merely adopted assertions made by the parties during the locus visit. In my view, the difficulty here is not merely procedural formalism. It goes to the very foundation of the tribunal’s conclusion. In disputes concerning boundaries and measurements, findings of encroachment must emerge from a clear, ascertainable and verifiable process reflected on the record. The appellate court must be able to understand how the measurements were undertaken and how the final dimensions were arrived at. That clarity is lacking in the present matter. I therefore find that although the tribunal properly complied with the law relating to assessors and the composition of the tribunal, the evidential basis supporting the conclusion that the appellant trespassed into the respondent’s Page. 13

land by one metre was not sufficiently demonstrated on record. Accordingly, the second issue succeeds in favour of the appellant. The cumulative effect of the foregoing shortcomings is that the proceedings conducted during the visit to locus in quo fell short of the settled procedural and evidentiary standards governing such judicial exercise. The tribunal ultimately relied upon the outcome of that visit in reaching the finding that the appellant had encroached upon the respondent’s land by one metre. However, the record does not sufficiently disclose the process through which that conclusion was reached. As already observed, the proceedings do not reveal the actual measurement exercise undertaken, the fixed points used, the method employed in arriving at the measurements, or the evidentiary route through which the tribunal independently verified the alleged encroachment. Equally, the proceedings do not disclose whether the factual matters demonstrated during the locus visit were subsequently subjected to evidentiary scrutiny in court in the manner emphasized by the Court of Appeal in Sarah Diotrephes Mmari vs M/S ASM (T) Ltd, Civil Appeal No. 224 of 2022. In the circumstances, I am satisfied that the omission materially affected the integrity of the locus in quo proceedings and the evidential foundation upon which the tribunal’s ultimate conclusion rested. Since the finding of encroachment substantially arose from and depended upon the impugned Page. 14

locus visit, the defect cannot be treated as a mere irregularity curable under the law. Accordingly, I nullify the proceedings of the tribunal from the stage when the chairperson ordered for the visit to locus in quo. As a result, the judgment of the District Land and Housing Tribunal for Arusha in Land Application No. 234 of 2018 together with the resultant decree are hereby quashed and set aside. I remit the case file back to the District Land and Housing Tribunal for a fresh visit to locus in quo to be conducted in accordance with the settled legal procedure before another chairperson and assessors. Thereafter, the tribunal shall compose and deliver a fresh judgment in accordance with the law. Each party shall bear its own costs. It is so ordered. Dated at ARUSHA this 3rd of June 2026 . A. Z BADE JUDGE OF THE HIGH COURT Page. 15