Josephina Timoseo vs Kampuni Ya Kukopesha Manya and Others (Civil Appeal No. 8339 of 2026) [2026] TZHC 2952 (5 June 2026)

Page 1 of 11 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB - REGISTRY AT GEITA PC. CIVIL APPEAL NO. 8339 OF 2026 (Originating from Miscellaneous Civil Application No. 5495 of 2026 in the District Court of Geita) JOSEPHINA TIMOSEO ……………………………………… ………………... APP ELLANT VERSUS KAMPUNI YA KUKOPESHA MANYA ………….……… ..….……. ... .. 1 ST RESPONDENT AUDIFASI JOHN …………….. ……………….… …………….. … … ….2 ND RESPONDENT BONIPHACE PETER …………………………………………………….3 RD RESPONDENT R U LING Date of last order : 29/05/2026 Date of Ruling : 05 /0 6 /2026 MWAKAPEJE, J.: This appeal arises from an order of the District Court striking out an application for extension of time within which the appellant sought leave to file a revision application. In determining that ap plication, the District Court observed that it had previously addressed matters arising from Primary Court Civil Case No. 08 of 2022 and that the proceedings had already been revised in Civil Application No. 05 of 2023. In the opinion of the learned Magist rate, granting leave to file the intended revision application would effectively result in the same

Page 2 of 11 issues being revisited, thereby rendering the intended proceedings untenable. The learned Magistrate further observed that the parties in the intended revis ion proceedings were not the same as those in the original suit before the Primary Court. In Primary Court Civil Case No. 08 of 2022, the parties were Kampuni ya Kukopesha Manya , the plaintiff, and Audifasi John, the defendant. However, in the application for extension of time, the parties were Josephina Timoseo (the present appellant), Kampuni ya Kukopesha Manya, Audifasi John and Boniphace Peter. The District Court found that no sufficient connection had been established between the appellant and the proc eedings in Civil Case No. 08 of 2022 so as to justify the intended revision. Consequently, the court held that the application was improperly instituted and struck it out without considering its merits. Aggrieved by that decision, the appellant lodged the present appeal with the following grounds:

1. That the learned District Court Magistrate erred in law by issuing a striking - out order without specifying the defect to be corrected, thereby rendering the decision self - contradictory and prejudicial to the appel lant.

Page 3 of 11 2. That the learned District Court Magistrate erred in law by applying the doctrine of res judicata against the appellant despite the appellant not being a party to the previous revision proceedings. 3. That the learned District Court Magistrate erred in law by failing to identify the party alleged to lack locus standi and by disregarding the legal right of a non - party to seek revision. 4. That the learned District Court Magistrate failed to properly evaluate the evidence and admissions showing inconsistencies bet ween the plaintiff’s identity and the lender named in the loan agreement, as well as the absence of a proper description of the mortgaged property. 5. That the learned District Court Magistrate erred in law by failing to properly consider evidence establishi ng that the mortgaged property was situated outside the territorial jurisdiction of the trial court. 6. That the learned District Court Magistrate failed to properly consider evidence showing that the appellant’s property was sold without a valuation report, contrary to established legal requirements. 7. That the learned District Court Magistrate erred in law by denying the appellant the right of appeal against a striking - out order that effectively removed the matter from the court without identifying any curable defect. ‘ The appeal wa s disposed of through written submissions filed by the parties pursuant to the Court's scheduling order. The appellant was represented by Mr. Kulwa Benjamine, learned Advocate, while the respondent 1 st and 3 rd respondents were represe nted by Mr. Beatus

Page 4 of 11 Emmanuel, also learned Advocate. The 2 nd respondent did not enter an appearance. Before embarking on the determination of the substantive issues raised in this appeal, I find it necessary to address a point of law that arose during the preparation of this judgment. Since the applicati on before the District Court was struck out and not determined on its merits, this Court invited learned counsel for the parties to address it on the question of whether the impugned order is appealable within the meaning of section 84 and Order XXXIX of t he Civil Procedure Code, Cap. 33 R.E. 2023, and consequently, whether this Court is properly seized of the appeal. Learned counsel for the appellant, Mr. Benjamine, acknowledged that, as a general proposition, an order striking out proceedings does not ord inarily give rise to a right of appeal because such an order does not amount to a determination of the matter on its merits. Counsel, however, cited TRA v. Tango Transport Co. Ltd , Civil Appeal No. 104 of 2009 (unreported) to bolster his argument that , in certain circumstances, a striking - out order may nevertheless be appealable where its effect is to finally determine the rights of the parties or effectively terminate the proceedings.

Page 5 of 11 He therefore urged the Court to consider the nature and effect of t he impugned order rather than merely the terminology employed by the District Court. Counsel further invited the Court, should it find the appeal competent, to determine the appeal on its merits and not be unduly constrained by technical considerations. On the other hand, Mr. Emmanuel submitted that the District Court's decision arose from preliminary legal issues raised by the court itself and addressed by the parties before the application could be considered on its merits. According to counsel, the appli cation for extension of time was struck out without any determination of the substantive rights of the parties. He therefore argued that when section 84(2) of the Civil Procedure Code is read together with Order XXXIX thereof, the impugned order does not qualify as an appealable order because it neither determined the application on its merits nor finally determined the rights of the parties. Counsel consequently maintained that the present appeal is premature and incompetent. Having considered those riva l submissions, I find that the issue falls to be determined primarily by reference to section 84 of the Civil Procedure Code, Cap. 33 R.E. 2023 and the provisions of Order XXXIX thereof, which

Page 6 of 11 govern the circumstances under which appeals may lie from order s of subordinate courts. Of particular significance is section 84(2), which provides: “(2) Notwithstanding the provisions of subsection (1), and subject to subsection (3), no appeal shall lie against or be made in respect of any preliminary or interlocutor y decision or order of the District Court, Resident Magistrate’s Court or any other tribunal, unless such decision or order has effect of finally determining the suit .” [Emphasis supplied] The operative consideration under that provision is not merely the form of the order but its legal effect. The legislature has expressly restricted appeals against preliminary or interlocutory orders unless such orders have the effect of finally determining the suit. Thus, the inquiry before this Court is whether the orde r complained of finally determined the rights of the parties or merely terminated proceedings found to be procedurally defective. In urging the Court to entertain the appeal, learned counsel for the appellant invited the Court to consider the circumstances of the case and not to be unduly constrained by technicalities. While that submission is appreciated, it must be borne in mind that the issue presently under consideration is not a mere procedural technicality but one that goes to the

Page 7 of 11 jurisdiction of the Court. The right of appeal is not inherent; it is a statutory right whose existence, scope and limits are determined by the relevant legislation. Consequently, where the law restricts appeals to particular orders or decisions, a court cannot assume jurisdi ction merely because the circumstances of the case appear deserving of further inquiry. The principle that courts should administer substantive justice and avoid undue technicalities cannot be invoked to confer jurisdiction where none exists. Jurisdiction is a matter of law and not of discretion. Therefore, before considering the merits of the appellant's grievances, this Court must first satisfy itself that the impugned order is one from which an appeal lies under section 84(2) of the Civil Procedure Code. If the answer to that question is in the negative, the Court would have no legal basis upon which to proceed further, however sympathetic the appellant's case may appear. In that regard, the distinction between an order striking out proceedings and an ord er dismissing them is well settled. Whereas a dismissal ordinarily follows a judicial determination of a competent matter and has the effect of conclusively determining the rights of the parties, a striking - out order proceeds on the basis that there is no competent proceeding before the court capable of determination. The effect of such an

Page 8 of 11 order is not to adjudicate upon the merits of the dispute but to remove the defective proceedings from the court record, leaving the affected party at liberty, where the law permits, to institute fresh proceedings after rectifying the defect. That distinction was authoritatively explained by the erstwhile Court of Appeal for East Africa in Ngoni Matengo Co - operative Marketing Union Ltd v. Osman (Civil Application No. 2 of 1959) [1959] EACA 35 and later cited with approval by the Court of Appeal in Yahya Athumani Kissessa v. Hadija Omari Athumani and Others (Civil Appeal No. 105 of 2014) [2017] TZCA 988, where the Court observed: “The circumstances under which the court may "strike out" or "dismiss" an incompetent suit, application or appeal as the case may, be were succinctly articulated by the erstwhile Court of Appeal for East Africa in the Ngoni - Matengo case (supra); a decision cited by the High Court in Wolfram Haule; a case referred to and supplied to by Mr. Mshana for the appellant. In Ngoni - Matengo, the defunct Court of Appeal for East Africa grappled with an akin situation. The issue before that court was whether an incompetent appeal is "dismissed" or "stru ck out". The distinction was done by Windham, J.A speaking on behalf of Sir Kenneth O'Connor, P. and Gould, J.A at p. 580 with a clarity that merits quotation: “...when the appeal came before this court, it was incompetent for lack of the necessary decree… . This court accordingly had no jurisdiction to entertain it; what was before the court was

Page 9 of 11 abortive and not a properly constituted appeal at all. What this Court ought strictly to have done ... was to " strike out" the appeal as being incompetent, rather t han to have " dismissed" it; for the latter phrase implies that a competent appeal has been disposed of while the former phrase implies that there was no proper appeal capable of being disposed of ...” [Emphasis supplied] The foregoing exposition demonstrates that a striking - out order ordinarily signifies the absence of a competent proceeding capable of adjudication and does not amount to a determination of the substantive rights of the parties. Such an order is fundamentally different from a dismi ssal, which presupposes the existence of a competent matter that has been considered and disposed of on its merits. Applying the foregoing principles to the present case, the record shows that the appellant moved the District Court seeking an extension of time within which to file a revision application out of time. The learned Magistrate raised certain legal concerns relating to the propriety of the intended proceedings and invited the parties to address the court thereon. After hearing the parties, the Di strict Court did not proceed to determine whether the appellant had established sufficient cause for the extension of time.

Page 10 of 11 Instead, it concluded that the proceedings were improperly before the court and struck out the application. It is therefore evident that the District Court never reached the merits of the application and did not determine the appellant's entitlement to the extension sought. The substantive rights asserted in the application remained unadjudicated. In those circumstances, the impugned o rder cannot be said to have finally determined the suit or the rights of the parties within the meaning of section 84(2) of the Civil Procedure Code. The appellant's remedy, if any, lay elsewhere and not through the present appeal. For that reason, I am un able to accept learned counsel's invitation to proceed on the basis of the peculiar circumstances of the case. To do so would require the Court first to assume the existence of a right of appeal and thereafter consider the merits of the controversy. Such a n approach would reverse the proper order of inquiry. Jurisdiction must precede the consideration of merits, not vice versa. Since the impugned order does not attract a right of appeal under the governing statutory framework, the Court lacks jurisdiction t o examine the substantive complaints raised by the appellant.

Page 11 of 11 Accordingly, I find merit in the submission by learned counsel for the respondent that the impugned order does not attract a right of appeal under section 84(2) of the Civil Procedure Code. The present appeal is therefore incompetent and cannot be entertained by this Court. In the result, the appeal is hereby struck out. Since the issue leading to this determination was raised by the Court on its own motion, I make no order as to costs. It is so ordered. DATED at GEITA , this 0 5 th day of June 2026. G.V. MWAKAPEJE JUDGE