Veronica Margwe vs Moring Umbe (Criminal Appeal No. 000009381 of 2026) [2026] TZHC 2957 (5 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA PC CRIMINAL APPEAL NO. 000009381 OF 2026 VERONICA MARGWE COMPLAINANT / APPELLANT / APPLICANT VERSUS MORING UMBE RESPONDENT / DEFENDANT JUDGMENT MAHIMBALI, J The Appellant, Veronica Margwe, was charged before the Karatu Urban Primary Court with the offence of Criminal Trespass contrary to section 299 of the Penal Code, Cap. 16 R.E. 2022. The particulars of the offence alleged that on 29 December 2025, at Karatu District within Arusha Region, she unlawfully entered upon land belonging to the complainant by cultivating thereon. The appellant pleaded not guilty, thereby necessitating a full trial. However, during the hearing of the prosecution's case, the trial court formed the view that the dispute before it was, in essence, a land dispute rather than a criminal matter. Consequently, the criminal proceedings were withdrawn and the parties were advised to refer the matter to the appropriate land dispute resolution forum. Notwithstanding that finding, the trial court proceeded to issue a temporary injunctive order restraining both parties from entering upon, cultivating, or otherwise utilizing the disputed land pending Page. 1

determination of the dispute by the competent authority. Aggrieved by that order, the appellant lodged Criminal Revision No. 3430 of 2026 before the District Court of Karatu, challenging, among other things, the legality of the injunctive order. The revision was dismissed and the District Court upheld the decision of the Primary Court. Still dissatisfied, the appellant preferred the present second appeal. Although two grounds of appeal were advanced, I find the first ground alone sufficient for the determination of the appeal. It reads: "That the learned District Magistrate erred in law in affirming the decision of the trial court by upholding an injunctive order which had been issued without jurisdiction and in violation of the Constitution of the United Republic of Tanzania and the principles of natural justice." At the hearing of the appeal, Mr. Felichismi Baraka, learned Advocate, appeared for the appellant, while Ms. Anna Ombai, learned Advocate, appeared for the respondent. The appeal was argued orally. Supporting the appeal, Mr. Baraka submitted that once the Primary Court had expressly found that the dispute before it concerned land and that it lacked jurisdiction to determine it, the court became functus officio and could not lawfully issue any consequential orders touching upon the disputed land. Counsel argued that the injunctive order was therefore made without jurisdiction and was a nullity. In support of his argument, he cited llemela Municipal Council and Another v Joseph Kasheku (Land Revision No. 5 of 2020) [2020] HCTZ 862, where the High Court Page. 2

emphasized that a court lacking jurisdiction over a land dispute cannot validly issue orders affecting rights in land. In response, Ms. Ombai submitted that the order issued by the Primary Court was justified by the circumstances of the case, its purpose being to preserve peace and maintain the status quo pending resolution of the dispute by the competent authority. She contended that the District Court correctly upheld the order and urged this Court to dismiss the appeal for lack of merit. In a brief rejoinder, Mr. Baraka reiterated that an order issued without jurisdiction remains a nullity irrespective of the motive behind its issuance. Before considering the merits of the appeal, it is important to reiterate the settled principles governing a second appeal. Firstly, a second appellate court is confined to matters of law and does not ordinarily interfere with findings of fact. Secondly, concurrent findings of fact by the courts below will not be disturbed unless it is demonstrated that such findings were based on a misapprehension of evidence or resulted in a miscarriage of justice. The Court of Appeal stated in Seleman Rashid @ Daha v Republic (Criminal Appeal No. 190 of 2010) [2012] TZCA 334 and Bihani Nyankongo and Another v Republic (Criminal Appeal No. 182 of 2011) [2012] TZCA 311 that issues not raised and determined in the courts below cannot ordinarily be entertained on second appeal. Likewise, in Kennedy Owino Onyango and Others v Republic (Criminal Appeal No. 48 of 2006) [2009] TZCA 48, the Court of Appeal held that: Page. 3

"Again, as a matter of general principle, an appellate court cannot allow matters not taken or pleaded and decided in the court(s) below to be raised on appeal." Regarding concurrent findings of fact, the Court of Appeal in Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores v A. H. Jariwalla t/a Zanzibar Hotel (1980) TLR31 held that: "Where there are concurrent findings of fact by two courts, the Court of Appeal as a wise rule of practice should not disturb them unless it is clearly shown that there has been a miscarriage of justice or violation of some principle of law or procedure." Having carefully examined the record, I find that the determination of this appeal turns on a single legal question, namely, whether the Karatu Urban Primary Court possessed jurisdiction to issue an injunctive order after having found that the matter before it was a land dispute. Jurisdiction has been authoritatively defined in Halsbury's Laws of England, Vol. 10, paragraph 314, as: "The authority which a court has to decide matters litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means." The record clearly demonstrates that after hearing the complainant and his witnesses, the Primary Court concluded that the dispute was essentially one relating to ownership, possession, or use of land. That finding has not been challenged and Page. 4

is therefore not in dispute. Once the court reached that conclusion, the inevitable legal consequence was that jurisdiction over the matter vested exclusively in the institutions established under the Land Disputes Courts Act, Cap. 216 R.E. 2023, the Land Act, Cap. 113 R.E. 2023, and the Village Land Act, Cap. 114 R.E. 2023. The Primary Court was therefore divested of any authority to continue dealing with the subject matter, including the issuance of orders affecting occupation, possession, or use of the disputed land. It is a cardinal principle of law that jurisdiction is everything. A court acting without jurisdiction acts in vain. Any proceedings or orders undertaken in the absence of jurisdiction are null and void. The High Court in Lausa Alfan Salum and 106 Others v Minister for Lands and National Housing Corporation (1992) TLR 233 emphasized that a decision is liable to be quashed where it is tainted by illegality, irrationality, or procedural impropriety. A decision is illegal where the decision-maker acts outside the powers conferred by law. Applying that principle to the present case, I am satisfied that the trial court acted outside its lawful mandate when it issued an injunctive order after expressly declining jurisdiction over the dispute. The order was therefore made ultra vires, rendering it legally unsustainable. With respect, the District Court fell into error when it affirmed that order. In the result, I find merit in this appeal. Page. 5

Accordingly, the appeal is hereby allowed. The decision of the District Court of Karatu in Criminal Revision No. 3430 of 2026 is quashed and set aside. Consequently, the orders issued by the Karatu Urban Primary Court in Criminal Case No. 119 of 2026 on 12 February 2026 restraining the parties from entering upon or utilizing the disputed land are hereby declared null and void and are accordingly vacated. For avoidance of doubt, this judgment does not determine the substantive rights of the parties in respect of the disputed land. The parties are at liberty to pursue their claims before the competent land dispute resolution forum established under the law. It is so ordered. Dated at ARUSHA this 5th of June 2026 . F. H MAHIMBALI JUDGE OF THE HIGH COURT Page. 6