Sutayi Ntambi Kazungu and Another vs Vaileth Secondary School Limited and Others (CIVIL REFERENCE NO. 43 OF 2026) [2026] TZHC 2942 (5 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB - REGISTRY OF SHINYANGA AT SHINYANGA CIVIL REFERENCE N O . 43 OF 2026 ( Arising from the Ruling and Drawn Order of Kahama District Court in Taxation Cause No. 14732 of 2025 before Hon E. P. Kente, SRM dated 15/10/2025 ) SUTAYI NTAMBI KAZUNGU ………………………… ... 1 ST APPLICANT (THE PROPRIETOR OF HOMEFINDERS STATIONERIES & GENERAL SUPPLIES) HOMEFINDERS STATIONERIES &GENERAL … .… .2 ND APPLICANT SUPPLIES VERSUS VAILETH SECONDARY SCHOOL LIMITED…… . …1 ST RESPOND ENT EXECUTIVE DIRECTOR OF VAILETH …………….2 ND RESPONDENT SECONDARY SCHOOL LIMITED ROBERT NDOMELE …………………………………. 3 RD RESPONDENT (THE PROPRIETOR OF VAILETH SECONDARY SCHOOL LIMITED RULING 9 th April & 5 th June , 2026 Massam, J.: The respondents filed a B ill of Costs before the District Court of Kahama claiming a total sum of Tshs. 8,700,000/= arising from costs awarded in Civil Case No. 35 of 2020 against the applicants. Upon hearing the matter, the District Court taxed the Bill of Costs at Tshs. 5,890,0 00/=, which included instruction fees, attendance fees, and disbursements.

2 The applicants, being dissatisfied with that decision, filed a reference before this Court under Order VII Rules 1 and 2 of the Advocates’ Remuneration Order, G.N. No. 263 of 2 015, praying for this Court to examine the proceedings, ruling, and drawn order of the taxing officer in the Decree Holders’ Bill of Costs against the respondents in Taxation Cause No. 14732 of 2025, for the purpose of satisfying itself as to the correctne ss, legality, and propriety of the said proceedings, ruling, and the drawn order arising therefrom. The reference was instituted by way of Chamber Summons supported by an affidavit sworn by Sutayi Ntambi Kazungu, the 1 st applicant. The application wa s opposed by a counter - affidavit sworn by Robert Ndomele, a director and member of the 1 st and 2 nd respondents . During the hearing a pplicant appeared in person, unrepresented while the respondent was represented by Mr. B akari Chubwa, A dvocate for all r espondents . Arguing in support of the application, the applicant submitted that on 9.3.2025 he filed a Preliminary Objection (PO) against Taxation Cause No. 14732/2025. The same was not heard and determined, but the Taxing Master proceeded with the taxation hearing. That act of refusing to de termine the said PO infringed his right to be heard. He

3 cemented his argument by referring Article 13(6)(a) of the Constitution of the Uni ted Republic of Tanzania, 1977. He added that t he counsel for the de cree holder requested that the matter be heard by way of written submissions, and the same was granted. The matter was fixed for submissions on 8.9.2025, reply on 15.9.2025, and rejoinder on 19.9.2025 where the parties will appear to fix for a ruling dat e. Further, the applicant submitted that a t page 2, paragraph 2 of the ruling which was delivered on 17.12.2025, the court stated that he did not follow court instructions that’s why his PO was dis regarded. That is not true, as he followed the instru ctions as he raised his P O before the hearing, commenced and hence was denied the right to be heard. He forties his argument by referring the case of Ausdrill Tanzania Limited vs. Mussa Joseph Kumili and Another, Civil Application No. 78/2024 CAT Mtwara, a t page 5, where the court considered the right to be heard as a fu ndamental constitutional right. Again, the applicant added that t he taxing officer applied 6%, reducing the claimed amount from TZS 6,810,000 to TZS 4,000,000, which is excessive and di scriminatory to the applicant and contrary to the law governing taxation of costs. The 6% applies to liquidated sums and was therefore irrelevant and confusing.

4 Additionally, the applicant submitted that the ruling and decree do not correspond. The ru ling dated on 15.5.2025 differs from the drawn order, which includes a third respondent who was not a party. The drawn order also states that it was issued at Shinyanga Zone, while the matter was in Kahama, also it lacks a case number. These discrepancies were disregarded by the taxing officer. Further, the applicant claimed that amounts were not suppor ted by any documentary evidence. He cemented his argument by referring section 29(1) of the Value Added Tax Act, 2014, and Section 36(1) of the Tax Admin istration Act, 2015, and Professor Emanuel Mjema vs. Managing Editor, Dira ya Mtanzania Newspapers & Others, Reference No. 7/2017. Finally, the applicant submitted that o n disbursements (Items 39 an d 40), the term was misapplied as disbursement refer s to payment of money from a fund or settlement of debt, which is irrelevant in this case. On the other hand, Mr. Chubwa, Advocate argued that r egarding the PO, parties agreed on 2.9.2025 to proceed by written submissions. The applicant later raised a PO in reply of the submissions, contrary to court directions. The PO did not concern jurisdiction and was rightly ignored. Again, Mr Chubwa submitted that Civil Case No. 35/2020 was handled by three M agistrates. Although the case was dismissed an d

5 remitted, costs incurred remain payable unless expressly denied. Items 1 – 19 relate to services rendered. The applicant’s challenge lacks merit. Also, Mr Chubwa said that o n disbursements, the interpretation advanced is incor rect and should be disre garded and r egarding receipts, he said that proof of instruction fees does not require receipts. Taxing officers assess fees based on statuto ry scales and relevant factors. He cemented his argument by referring the case of Tanzania Rent a Car Ltd vs. Pete r Kimuhu , Civil Reference No. 9 of 2020. Moreover, Mr Chubwa contended that t he applicant had claimed TZS 113,000,000, making it a liquidated sum under the Advocates Remuneration Order, 2015. The 6% applied falls within the legal scale, and the reducti on to TZS 4,000,000 was within the taxing officer’s discretion. Finally, Mr Chubwa prayed that the application be dismissed for want of merit. In the way of rejoinder, applicant submitted that t he respondent’s advocate admitted applying 6% witho ut proper legal basis. That percentage applies to interest on delayed debts, which is not applicable here. Further, the applicant added that he properly raised the PO before the hearing commenced.

6 Finally, the applicant yielded that t he taxing o fficer failed to exercise discretion judicially. I have carefully considered the application and the rival submissions of the parties. The issue for determination is whether the preliminary objection was heard and determined, and if not, whether the application has merit. Starting with the issue of whether the preliminary objection was heard and determined . It is settled law that, once a preliminary objection is raised, it must be determined first before the substantive case is heard and d etermined. This is pertinent because the whole purpose of a preliminary objection is to make the court consider the first stage much earlier, save the time of the court and the parties by not going into the merits of the case because there is a point of la w that would dispos e of the matter summarily. See the cases of Thabit Ramadhan Maziku and Kisuku Salum Kaptula vs. Amina Khamis Tyela and Mrajis wa Nyaraka Zanzibar, Civil Appeal No. 98 of 2011 , The Bank of Tanzania Ltd v s . Devram P. Valambhia, Civil Appli cation No. 15 of 2002 , Khaji Abubakar Athumani vs . Daud Lyakugile t/a DC Aluminium and Mwanza City Council, Civil Appeal No. 86 of 2018 and Modest

7 Joseph Temba vs. Bakari Selemani Simba and two others, Civil Revision No. 223/17 of 2019 . The applicant’ s complaint is that his Preliminary Objection was neither heard nor determined. Howeve r, the record shows that on 1 st September 2025, the parties agreed to dispose of the application by way of written submissions, and specific timelines were issued by the taxing officer. It is equally evident that the applicant filed the Preliminary Object ion on 4 th September 2025, after such directions had already been issued. It is settled law that not every objection raised by a party amounts to a true preliminary objection requiring prior determination. Once the court had already directed the parties to dispose of the application by way of written submissions, no Preliminary Objection could properly be raised without leave of the court, as doing so would depart fr om orderly procedure. See the case of Manging Director, TANESCO and Anoth er Vs Interbest Investment Co. Lt d, Civil Reference No 1 of 2003 [2004] TZCA 175 and Ayubu Bendera and others Vs A.I.C.C Arusha , Civil Application No 9 of 2014 [2016] TZCA 2322. In t he circumstances, I agree with Mr. Chubwa that the preliminary objection was improperly raised, which explains why the taxing master di sregarded it. Therefore, the 1 st applicant cannot complain that his

8 preliminary objection was not determined in those cir cumstances. I find no procedural impropriety on the part of the taxing officer in proceeding with the taxation . On the second issue of whether the application has merit. As regards the right to be heard under Article 13(6)(a) of the Constitution o f United Republic of Tanzania 1977, the record demonstrates that the applicant participated in the proceedings through written submissions and rejoinder submissions. The complaint that he was denied the right to be heard is therefore not borne out by the r ecord. On the question of the 6% scale applied by the taxing officer, the record indicates that the primary suit involved a monetary claim amounting to TZS 113,000,000. Under the applicable provisions of the Advocates Remuneration Order, instruction fee s may properly be assessed based on the value of the subject matter. The taxing officer further exercised discretion by reducing the claimed amount from TZS 6,810,000 to TZS 4,000,000. It is trite law that a judge should not interfere with the disc retion of a taxing officer unless it is shown that the discretion was exercised on wrong principles or the amount awarded is manifestly excessive or manifestly low. See the case of Nyangito & Co Advocate vs Pamba

9 Industries Ltd , Civil Appeal No. 40 of 199 2 and Bank of Tanzania vs Devram P. Valambia, Civil Appeal No. 52 of 20026. The applicant has not demonstrated any such error. Concerning the alleged discrepancies between the ruling and the drawn decree, I am of the considered view that the irregul arities complained of are curable clerical or procedural errors which do not go to the substance of the taxation proceedings. They neither occasion prejudice to the applicant nor invalidate the taxation process. See the case of Jewels & Antiques (T)Ltd vs National Shipping Agencies Co. Ltd [1994] TLR 107 and Chacha Kiguha & others vs General Manager African Barrick Gold Ltd, Civil Application No. 338/08 of 2023. With regard to the complaint that the taxed amounts lacked documentary support, I agree wit h the respondent that instruction fees are not strictly proved by receipts. Such fees are assessed by the taxing officer in accordance with the statutory scales, the nature of the matter, the value of the subject matter, and the work done by counsel. See t he case of Rent A Car Limited vs Peter Kimuhu , Civil Reference No 9 of 2020. Accordingly, the argument based on absence of receipts is without merit.

10 Equally, the challenge against items 39 and 40 on disbursements lacks merit. In taxation proceeding s, disbursements include expenses reasonably incurred in the course of litigation and are not limited to settlement of debts as suggested by the applicant. In the final analysis, I find that the applicant has failed to demonstrate that the taxing offi cer committed any error in principle warranting interference by this Court. Consequently, the application is hereby dismissed with costs. It is so ordered. DATED at SHINYANGA this 5 th day of June , 2026. R. B. Massam Judge