Silas John Machunda vs Ezron W. Kimaro (PC CIVIL APPEAL NO. 000013875 OF 2024) [2026] TZHC 3105 (5 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA PC CIVIL APPEAL NO. 000013875 OF 2024 SILAS JOHN MACHUNDA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS EZRON W. KIMARO .............................. RESPONDENT / DEFENDANT JUDGMENT BADE, J 03/03/2026 & 05/06/2026 This is a second appeal. It arises from the judgment of the District Court of Arusha at Arusha, exercising its appellate jurisdiction in Civil Appeal No. 25 of 2023. The judgment was delivered on 17th May, 2024. The background giving rise to the present appeal may briefly be gathered from the record. The late Ezron W. Kimaro, who is now represented in these proceedings by the respondent, instituted a civil suit against the appellant before the Arusha Urban Primary Court, hereinafter referred to as “the trial court”. His claim was for TZS 23,580,000, being money allegedly given to the appellant for purposes of purchasing for him a motor vehicle make “Haice”. Page. 1

According to the respondent, the appellant did not purchase the said motor vehicle as agreed. Upon several demands for refund, the appellant only repaid TZS 2,000,000, leaving the balance unpaid. The appellant, who was the defendant before the trial court, denied the claim. His case was that the late Ezron W. Kimaro used to teach his children remedial classes at his residence at an agreed monthly wage of TZS 60,000. He further stated that the late Ezron W. Kimaro requested him to retain the said wages so that he could, in future, use the accumulated amount to purchase a “Haice” motor vehicle. The appellant maintained that after a misunderstanding arose between them, the late Ezron W. Kimaro stopped teaching his children, and by then the only amount due to him was TZS 2,000,000, which had already been paid. Upon hearing the evidence of both parties, the trial court found that the respondent had proved his claim on the balance of probabilities. It entered judgment in favour of the respondent for the claimed amount and ordered the appellant to pay the costs of the suit. Aggrieved by that decision, the appellant preferred an appeal to the District Court of Arusha, being the first appellate court. His appeal was founded on five grounds, namely: i. That the trial magistrate erred in law and in fact by failing to scrutinize and evaluate the evidence adduced during trial, thereby arriving at an erroneous Page. 2

decision. ii. That the trial magistrate erred in law and in fact by being biased and by completely disregarding the evidence and testimony of the appellant and his witnesses, thereby arriving at an erroneous decision. iii. That the trial magistrate erred in law and in fact by relying on exhibit B, which the appellant denied knowing, and in respect of which no witness was called by the respondent to prove who chaired the alleged meeting at the Ward Office, thereby arriving at an erroneous decision. iv. That the trial magistrate erred in law and in fact by disregarding the evidence of DW2, into whose account TZS 13,000,000 was deposited pursuant to an alleged personal arrangement between the respondent and DW2, and by condemning the appellant to pay an amount which he neither knew of nor received. v. That the trial magistrate reached an erroneous decision by entering judgment in favour of the respondent without considering the standard of proof required by law. After hearing the parties, the first appellate court dismissed the appeal and upheld the decision of the trial court. It was satisfied that the respondent had proved his case to the standard required by law. Page. 3

Still aggrieved, the appellant has now preferred this second appeal. The petition of appeal contains five grounds which, in substance, substantially mirror the grounds that were raised before the first appellate court. They are as follows: i. That the first appellate court erred in law and in fact by failing to scrutinize and re-evaluate the evidence adduced during trial, thereby arriving at an erroneous decision. ii. That the first appellate court erred in law and in fact by being biased, by completely disregarding the appellant’s evidence and testimony together with that of his witness, and by relying only on the evidence adduced by the respondent, thereby arriving at an erroneous decision. iii. That the first appellate court erred in law and in fact by relying on exhibit B, which the appellant denied knowing, and in respect of which no witness was called by the respondent to prove who chaired the alleged meeting at the Ward Office. It was further contended that, if exhibit B was a contract as admitted by counsel for the respondent during the hearing of the appeal, then the same ought to be expunged from the record for want of stamp duty as required by law. iv. That the first appellate court erred in law and in fact by continuing to disregard the evidence of DW2, into whose account TZS 13,000,000 was deposited pursuant to an alleged personal arrangement between the Page. 4

respondent and DW2, thereby condemning the appellant to pay an amount which he neither knew of nor received. v. That the first appellate court reached an erroneous decision by granting judgment in favour of the respondent without considering the standard of proof required by law in the original trial before the trial court. This appeal was disposed of by way of written submissions, with submissions filed by Mr. Simon E. Mbwambo, learned advocate, who appeared for the appellant, while Mr. Abel Ottaru, learned advocate, appeared for the respondent. In support of the first ground of appeal, Mr. Mbwambo submitted that the evidence on record was not properly scrutinized and evaluated. He argued that had the trial court properly analysed the evidence, it would not have arrived at the decision it reached. Counsel further submitted that no contractual document was tendered to prove the respondent’s claim. He contended that the appellant was not a car dealer and had no business in the sale of motor vehicles. It was further submitted for the appellant that the evidence showed that the late Ezron W. Kimaro was a teacher and used to teach the appellant’s children. According to counsel, the TZS 2,000,000 paid to him was not part payment for a motor vehicle transaction, but rather his accumulated teaching allowance, which had been agreed to be paid monthly and collected on his behalf by the Page. 5

appellant for a number of months. Counsel argued that, had the evidence been properly evaluated, the trial court would have found that the respondent’s case was fabricated and was not proved to the required standard. To support that position, counsel cited the case of Stanslaus Rugaba Kasusura and Attorney General vs Phares Kabuye [1982] TLR 338. On the second ground, Mr. Mbwambo submitted that the trial court failed to consider the strong evidence adduced by the appellant. He argued that the appellant’s evidence established that the respondent was teaching the appellant’s children and that the amount paid to him was his agreed wage. He further submitted that the appellant’s witness supported that account, but the trial court disregarded that evidence and based its decision solely on the evidence adduced by the respondent and his witnesses. On the third ground, counsel for the appellant challenged the reliance placed on exhibit B. He submitted that exhibit B was said to be minutes written and signed at Ngarenaro Ward Office. However, the appellant denied knowledge of the alleged meeting. Counsel argued that no person who allegedly chaired the meeting was called to testify. In his view, the failure to call such a witness weakened the credibility of exhibit B, and it was therefore wrong for the trial court and the first appellate court to rely on it as a basis for condemning the appellant to pay TZS 23,580,000. Page. 6

On the fourth ground, Mr. Mbwambo submitted that it was not disputed that TZS 13,000,000 was deposited into the account of DW2 and not into the account of the appellant. He contended that DW2 testified before the trial court that the said amount was deposited into her account by the respondent in respect of her own personal and business arrangements with him. Counsel argued that the appellant could not lawfully be condemned to pay money which he did not receive. In his submission, if the respondent had any claim in respect of that amount, he ought to have sued both the appellant and DW2. Counsel maintained that the record clearly showed that the amount of TZS 13,000,000 should be borne by DW2. On the fifth ground, counsel submitted that the law places the burden of proof on the party who alleges. He relied on section 117(1) and (2) of the Tanzania Evidence Act, Cap. 6 R.E. 2023. He argued that the respondent failed to discharge that burden and did not prove his case on the balance of probabilities. Counsel further faulted the first appellate court for confirming a decision that was not supported by sufficient proof. He cited the case of Sudiv Kasapa vs Paulo Futakamba , Land Appeal No. 15 of 2021, in support of that submission. In reply, Mr. Ottaru, learned counsel for the respondent, resisted the appeal. On the first ground, he submitted that the complaint that the evidence was not analysed or that the appellant’s case was ignored was not borne out by the Page. 7

record. He argued that page 9 of the judgment of the first appellate court clearly showed that the appellant’s case was considered but rejected for want of merit. According to him, both courts below evaluated the oral evidence of the respondent together with the exhibits tendered. Counsel further submitted that the appellant admitted in exhibit B that he had received TZS 25,580,000 from the respondent before the Ward Tribunal, and that this fact was supported by the evidence of PW4 and PW5. On the second ground, counsel submitted that the trial court considered the evidence adduced by both parties and, upon weighing it, found the respondent’s evidence to be more credible. He argued that the appellant had not pointed out the specific evidence which was allegedly ignored by the courts below. In that regard, he referred this Court to page 10 of the judgment of the first appellate court and page 8 of the judgment of the trial court. In answer to the third ground, which challenged the reliance placed on exhibit B, Mr. Ottaru submitted that the first appellate court examined the record and the submissions and was satisfied that exhibit B was a record of a meeting which the appellant attended and signed, thereby admitting his indebtedness. Counsel argued that the appellant’s denial of knowledge of exhibit B was untruthful. He further submitted that PW4 and PW5 testified that they witnessed the appellant signing exhibit B. According to counsel, the credibility of exhibit B was not challenged before the trial court when it was tendered, and Page. 8

the challenge raised at this stage was an afterthought. On the fourth ground, counsel submitted that the courts below properly weighed the evidence of DW2 against the evidence of the respondent and found the testimony of DW2 to be weak. He contended that the amount of TZS 13,000,000 was deposited into the account of DW2, who was the appellant’s wife, for purposes of purchasing the motor vehicle and not pursuant to any personal arrangement between DW2 and the respondent. On the fifth ground, counsel maintained that the respondent proved his case to the required standard. He submitted that the first appellate court went through the record of the trial court and was satisfied that the trial magistrate had properly scrutinized the evidence of both sides and decided the matter on the balance of probabilities. Having considered the grounds of appeal, the record and rival submissions of the parties, it is apparent that although the appellant has raised five grounds, they all revolve around one central complaint that the two courts below wrongly evaluated the evidence and consequently reached an erroneous conclusion that the respondent had proved his claim on the balance of probabilities. In particular, the appellant attacks the reliance placed on exhibit B, the treatment of the evidence of DW2, and the finding that he was liable for the claimed amount. Page. 9

In determination, therefore, is the issue whether on the evidence on record, the first appellate court properly re-evaluated the evidence and correctly upheld the finding of the trial court that the respondent had proved his claim against the appellant on the balance of probabilities. In resolving this issue, I will necessarily consider whether there is any legal basis for this court, sitting as a second appellate court, to interfere with the concurrent findings of fact made by the two courts below. It also means the appeal before me is not a rehearing of the suit as if evidence was being received for the first time. The trial court heard the witnesses, observed their demeanour, received documentary evidence, and made findings of fact. The first appellate court, on its part, had the duty to re-evaluate the evidence and determine whether the trial court’s conclusions were supported by the record. Therefore, on a second appeal, this Court is generally slow to interfere with concurrent findings of fact by the two courts below unless it is shown that there was a misapprehension of the evidence, a violation of a principle of law, consideration of matters which ought not to have been considered, failure to consider material evidence, or that the conclusions reached are plainly perverse. The Court of Appeal has stated this position in several decisions. In Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores vs A. H. Jariwalla t/a Zanzibar Hotel [1980] TLR 31 , it was held that where there are Page. 10

concurrent findings of fact by two courts, an appellate court should not disturb them unless it is clearly shown that there has been a misdirection or non- direction on the evidence. The same approach was restated in Neli Manase Foya vs Damian Mlinga [2005] TLR 167 , where the Court emphasized that a second appellate court does not lightly interfere with concurrent findings of fact unless there are compelling reasons. Guided by that principle, the central question is not whether this court would, sitting as a trial court, have written the judgment in the same manner. The true question is whether the two courts below acted on evidence which was legally capable of supporting the respondent’s claim, and whether the first appellate court properly discharged its duty of re-evaluating that evidence before confirming the trial court’s decision. In the meantime, I have observed that the appellant’s complaint is threefold. First, that the evidence was not properly evaluated. Second, that exhibit B was wrongly relied upon and third, that the evidence of DW2 was disregarded, particularly in relation to the sum of TZS 13,000,000 which was deposited into her account. In my view, these complaints must be considered together because they all go to the sufficiency and weight of the evidence upon which the respondent’s claim was allowed. The law on burden and standard of proof in civil proceedings is settled. Under sections 110 and 111 of the Tanzania Evidence Act, Cap. 6 R.E. 2022, Page. 11

whoever desires a court to give judgment as to any legal right dependent on the existence of facts which he asserts must prove that those facts exist. In civil cases, that burden is discharged on the balance of probabilities. Therefore, the respondent, being the claimant before the trial court, had the duty to prove that he gave the appellant money for the purchase of the motor vehicle and that the appellant failed to perform that obligation or refund the money. It follows that the respondent could not succeed merely because the appellant’s explanation appeared weak. He had to stand on the strength of his own evidence. However, once the respondent placed before the court evidence showing payment of money, the purpose of that payment, the appellant’s acknowledgment of the debt, and partial repayment, the evidential burden shifted to the appellant to give a credible answer to that case. From the record, the respondent’s case was not founded on bare oral assertion only. The respondent maintained that he gave the appellant money to purchase a motor vehicle make “Haice”. The appellant did not deny that there had been some monetary dealings between them. His answer was that the money related to teaching services allegedly rendered by the late Ezron W. Kimaro to the appellant’s children at the rate of TZS 60,000 per month. He admitted payment of TZS 2,000,000 to the respondent, but claimed that the said amount represented accumulated teaching allowance. Page. 12

However in my view, the difficulty with the appellant’s explanation becomes clearly apparent from the figures involved. On his own case, the alleged teaching allowance was TZS 60,000 per month. The amount claimed by the respondent was TZS 23,580,000. Even the amount which the appellant admitted to have paid, namely TZS 2,000,000, would represent a very long period of unpaid teaching allowance at the alleged monthly rate. The appellant therefore had the duty to explain, with some clarity and credibility, for how long the respondent taught his children, how the wages accumulated to that extent, and why such a substantial amount would be retained by him merely on the basis of an informal arrangement. Any explanation given by the appellant against this position does not appear to have been found credible by the two courts below. This is important because courts do not determine civil disputes by isolating one sentence from the evidence. They look at the whole story and test whether it is probable. In Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama, Civil Appeal No. 305 of 2020, [2021] TZCA 699, the Court of Appeal, citing Miller vs Minister of Pensions [1947] 2 All ER 372, stated that in civil cases the standard is the balance of probabilities; the court sustains the evidence which is more credible, and the burden is discharged where the evidence makes the asserted fact more probable than not. In Lord Denning’s words: Page. 13

´… if the evidence makes the tribunal think a fact is more probable than not, the burden is discharged; but if the probabilities are equal, it is not.’ See also Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017, CAT at Mwanza, where the Court restated that the burden of proof does not shift until the party bearing it has discharged it, and that a party cannot succeed merely on the weakness of the opposite party’s case. In the instant case, the respondent’s version was that money was advanced for the purchase of a motor vehicle. The appellant’s version was that the money represented accumulated teaching allowance. When placed side by side with the amount claimed, the admitted repayment of TZS 2,000,000, and exhibit B, the two courts below were entitled to find the respondent’s version more probable. I now turn to exhibit B, which is the main target of the appellant’s attack. The appellant argued that he did not know exhibit B, that no person who chaired the alleged Ward Office meeting was called to testify, and that the courts below ought not to have relied on it. He further argued that if exhibit B was treated as a contract, then it ought to have been expunged for want of stamp duty. With respect, the appellant’s argument appears to overstate the nature and use of exhibit B. From the submissions and the findings of the courts below, Page. 14

exhibit B was not treated as the foundational contract creating the original obligation between the parties. Rather, it was treated as evidence of acknowledgment or admission of indebtedness at a meeting in which the appellant was alleged to have participated. That distinction matters. A document may be relied upon not necessarily as the contract itself, but as a piece of evidence showing conduct, admission, acknowledgment, or settlement of a dispute between parties. The respondent’s counsel submitted that PW4 and PW5 testified that the appellant attended the meeting and signed exhibit B. If that evidence is borne out by the record, then the absence of the person who chaired the meeting would not, by itself, be fatal. The law does not require a party to call every person who witnessed a transaction or attended a meeting. What matters is whether the witnesses called were capable of proving the relevant fact. Under section 143 of the Tanzania Evidence Act, Cap. 6, no particular number of witnesses is required for proof of any fact. The Court of Appeal has applied that principle in Rashid Issa vs Republic, Criminal Appeal No. 210 of 2010 and Bakari Hamis Ling’ambe vs Republic, Criminal Appeal No. 161 of 2014, (unreported) holding in substance that what matters is not the number of witnesses called, but whether the evidence adduced is sufficient to prove the fact in issue. The omission to call a particular witness only becomes material where that witness was necessary to clarify a vital fact and the omission invites an adverse inference. Page. 15

In the present case, if PW4 and PW5 were present at the meeting and testified that the appellant attended and signed exhibit B, the absence of the chairperson would not automatically render exhibit B unreliable. The appellant’s denial of exhibit B was therefore a matter of credibility. The trial court, which heard the witnesses, believed the respondent’s side. The first appellate court re-examined the record and agreed with that conclusion. This court, sitting on a second appeal, can only interfere if it is shown that the concurrent finding was based on no evidence, or that the courts below ignored a material contradiction, misdirected themselves, or relied on inadmissible evidence. Mere disagreement with the weight attached to exhibit B is not, by itself, a sufficient ground. On the argument relating to stamp duty, I am not persuaded, at this stage, that the complaint can carry the appeal. The appellant did not demonstrate that exhibit B was the contract upon which the cause of action was solely founded. As already stated, the document appears to have been relied upon as evidence of acknowledgment of debt. Further, the record as presented in the submissions suggests that the objection was not properly taken at the time the document was tendered before the trial court. A party who allows a document to be admitted without objection cannot ordinarily wait until a second appeal and then seek to attack its admissibility, unless the complaint goes to a fundamental illegality apparent on the face of the record. Page. 16

The next complaint concerns DW2 and the sum of TZS 13,000,000 deposited into her account. The appellant contended that because the money was deposited into DW2’s account, and because DW2 testified that the transaction was personal between herself and the respondent, the appellant could not be condemned to pay that amount. The respondent’s answer was that DW2 was the appellant’s wife and that the money was deposited into her account for the purpose of purchasing the motor vehicle. In my view, the issue is not merely whose bank account received the money. The more important question is why the money was deposited into that account and for whose benefit. In ordinary dealings, money may be paid through a third party or into another person’s account without changing the true nature of the transaction. If the evidence showed that DW2’s account was used in furtherance of the arrangement between the respondent and the appellant, then the appellant could not avoid liability simply because the money did not physically pass through his own bank account. The evidence of DW2 was considered by the courts below and was found to be weak when weighed against the respondent’s evidence. That was a finding of fact. The appellant has not shown that the two courts below ignored DW2’s testimony altogether. His real complaint is that they did not believe her. There is a legal difference between failure to consider evidence and rejection of evidence after consideration. The former may amount to an error; the latter is Page. 17

part of the court’s evaluative function. On the record as summarized by the parties, the first appellate court did not simply rubber-stamp the trial court’s decision. It considered the appellant’s complaint on the evaluation of evidence, addressed exhibit B, considered the evidence of the parties, and found that the respondent’s evidence was more probable, which was a proper appellate inquiry that cannot be faulted. In any case, the first appellate court is not required to reproduce every line of the trial record. What is required is that it should show that it subjected the evidence to fresh scrutiny and reached its own conclusion. From the judgment referred to by the respondent’s counsel, particularly pages 9 and 10, I am of the settled mind that the first appellate court appears to have properly done so. I am also not persuaded by the allegation of bias. Bias is a serious allegation. It must be supported by material showing that the court acted with partiality, hostility, or a predisposition against a party. It is not enough to allege bias merely because the court believed the evidence of one side and rejected that of the other. As it happens, judicial evaluation necessarily involves weighing competing versions of evidence and where appropriate, preferring one version over the other. Obviously, that exercise without more, cannot amount to bias. In Goodluck Kyando vs Republic [2006] TLR 363, the Court of Appeal underscored that a witness is entitled to credence unless there are cogent reasons for disbelieving him. Likewise, in Hussein Iddi and Another Page. 18

vs Republic [1986] TLR 166, the Court emphasized that the court must assess whether inconsistencies are material. Therefore, a court does not become biased merely because it believes one side and rejects the other. Bias must be supported by objective material showing partiality or a reasonable apprehension of it. As stated by this court in Mwesigwa Zaidi Siraji vs Mara Textile Limited, Civil Case No. 53 of 2021, [2023] TZHC 16355, mere dissatisfaction with judicial reasoning or adverse rulings is not sufficient to establish bias. In the present appeal, the appellant’s allegation of bias is tied to the complaint that his evidence was disregarded. As already stated, the record shows that his case was considered but appropriately rejected. That does not establish bias. It only shows that the courts below were not persuaded by his explanation. In the end, the respondent’s claim rested on the evidence that money was given to the appellant for the purchase of a motor vehicle; that the vehicle was not purchased; that the appellant made a partial repayment of TZS 2,000,000; that exhibit B recorded an acknowledgment of indebtedness; and that witnesses supported the respondent’s version. Against that evidence, the appellant gave an alternative explanation based on teaching services and the use of DW2’s account. The two courts below found the respondent’s version more probable. Page. 19

On my part, I see no basis upon which this court can interfere with that concurrent finding. The appellant has not demonstrated that the courts below misapprehended the evidence, applied a wrong principle of law, relied on no evidence, or reached a conclusion which is perverted that no reasonable tribunal could reach. What the appellant invites this court to do is to re-weigh the evidence and substitute its own view for the concurrent factual findings of the two courts below, which is not the proper function of a second appellate court. For those reasons, I answer the issue in the affirmative. The first appellate court properly re-evaluated the evidence and correctly upheld the finding of the trial court that the respondent had proved his claim against the appellant on the balance of probabilities. Having answered the issue in the affirmative, the inevitable conclusion is that this appeal is without merit. The appellant has not established any legal or evidential basis upon which this court, sitting on a second appeal, may interfere with the concurrent findings of the two courts below. Consequently, the appeal is hereby dismissed in its entirety. The judgment and decree of the District Court of Arusha in Civil Appeal No. 25 of 2023, which upheld the decision of the Arusha Urban Primary Court, are hereby confirmed. The appellant shall pay the costs of this appeal. Page. 20

Ordered accordingly. Dated at ARUSHA this 5th of June 2026 . A. Z BADE JUDGE OF THE HIGH COURT Page. 21