CSI Energy Group Tanzania Limited vs Adronicus Kembunga Byamungu (Under the capacity as receiver and manager for Aqua Power Tanzania Limited) and 2 Others (Commercial Case No. 4453 of 2025) [2026] TZHC 2916 (4 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE NO. 4453 OF 2025 CSI ENERGY GROUP TANZANIA LIMITED ......................PLAINTIFF VERSUS ADRONICUS KEMBUNGA BYAMUNGU ( under the capacity as receiver and manager for AQUA POWER TANZANIA LIMITED...1S TDEFENDANT ADRONICUS KEMBUNGA BYAMUNGU ( under the capacity as receiver and manager for AQUA DUIKER HOLDING LIMITED...2N DDEFENDANT I & M BANK TANZANIA LIMITED ............................ 3 rd DEFENDANT JUDGMENT 28h April & 4 hJune, 2026 POMO, 3 The plaintiff, CSI ENERGY GROUP TANZANIA LIMITED, has sued the defendants for breach of the Sale of Assets Agreement dated 7th September 2023, or in the alternative, for a declaration that the said agreement is void ab initio on account of fraudulent misrepresentation, together with a claim for refund of USD 1,355,000, general damages, interest, costs and other reliefs. i

The facts of the case, albeit briefly, can be summarized as follows: It is said the plaintiff entered into a Sale of Assets Agreement with the 1st and 2nd defendants, who were acting under receivership, for the purchase of a power plant and landed property situated at Plot No. 1, Block A, Hiyari Area, Mtwara District. The agreed purchase price was USD 13,550,000, out of which the plaintiff paid USD 1,355,000 as 10% of the purchase price before execution of the agreement. The plaintiff's case is that the transaction was entered into on the understanding that the assets were suitable for the intended purpose of electricity generation and that all material conditions relating to the property had been observed. The plaintiff contends that after execution of the agreement, due diligence conducted by its financier, CSI Energy Group Mauritius Limited, revealed material anomalies relating to the land use of the property on which the power plant stood. According to the plaintiff, the land was not designated for operation of a power plant, and that fact was later confirmed through its counsel by Mtwara Municipal Council. Further, the plaintiff contends that the transaction was also concluded without the requisite regulatory notification and approval from the Fair Competition Commission. On the basis of those matters, the plaintiff maintains that the defendants had misrepresented or 2

concealed material facts which induced it to execute the agreement and pay the initial instalment. It is further the plaintiff's case that, upon discovering the said anomalies, it sought an amicable resolution by requesting extension and restructuring of the agreement, but the defendants declined. The plaintiff also complains that notwithstanding the alleged defects in the transaction and without issuing invoices for the outstanding instalments, the defendants cancelled the agreement and forfeited the sum of USD 1,355,000. That, such forfeiture was unjustified because, under clause 2.5 of the agreement, any forfeited amount was to be limited to damages, costs, charges and expenses incidental to the agreement, which the defendants never quantified or justified. The plaintiff therefore claims that the defendants breached the agreement and/or fraudulently misrepresented the state of the transaction, hence the present suit. The defendants deny the plaintiff's claim. The 1st and 2nd defendants' position is that they were lawfully appointed as receiver managers and sold the assets pursuant to powers conferred upon them under the relevant securities. They contend that the sale was preceded by public advertisement, bidding, evaluation and award, and that the plaintiff entered into the 3

agreement after conducting its own legal and commercial due diligence. They further maintain that the assets were sold on an "as is where is" basis, and therefore there was no misrepresentation or fraud as alleged by the plaintiff. The defendants further deny that there was any illegality or inconsistency in the land use. Their position is that the certificate of title showed that the land was designated for special industrial purposes under Group "N", which included furnaces and plants, and therefore the power plant was not inconsistent with the permitted land use. They also deny that approval from the Fair Competition Commission was required, contending that the transaction arose from the exercise of rights under mortgage and debenture securities. As regards cancellation and forfeiture, the defendants contend that the plaintiff failed to pay the subsequent instalments within the agreed time. According to them, the plaintiff was required to pay the second and last instalments as stipulated in the agreement, but defaulted. They maintain that they issued default notices, granted indulgence, and only thereafter cancelled the agreement and forfeited the initial payment in accordance with clauses 2.4 and 2.5 of the agreement. The 3rd defendant also denies liability,

stating that it was merely a secured creditor and banker exercising its rights through the appointment of the receiver manager, and that the plaintiff has no valid cause of action against it. This Court, on 25/02/2026, framed four issues for determination of the suit, namely; one, whether there was a valid agreement between the parties; two, if the first issue is answered in the affirmative, what were the terms of the said agreement; three, whether the defendants breached the terms of the agreement; and four, to what reliefs are the parties entitled to. During trial, the plaintiff enjoyed legal representation of Messrs. Danford Malima and Athanas Wigan, learned advocates, whereas the defendants enjoyed legal services of Mr. Stephen Axwesso and Ms. Kavola Semu, learned advocates. The plaintiff had one witness, namely JON GUNNAR, who testified as PW1. On the defence side, two witnesses testified, to wit; YOHANA JAMES JOHN, who testified as DW1, and ADRONICUS KEMBUNGA BYAMUNGU, who testified as DW2. Further, the plaintiff's side tendered twenty documentary exhibits, to wit; witness statement of PW1 dated 10th March, 2026 (exhibit PEI); the plaintiff's Board Resolution minutes dated 2nd February, 2025 (exhibit PE2); 5

the Agreement for Sale of Assets between Aqua Power Tanzania Limited, Bay Duiker Holding Limited and CSI Energy Group Tanzania Limited dated 7th September, 2023 (exhibit PE3); letter dated 3rd August, 2023 from the plaintiff to ADCA Veritas Law Group (exhibit PE4); letter dated 4th September, 2023 with Ref. No. CEG/FIN/MTW01/CSI TZ/2023/09 (exhibit PE5); letter dated 14th November, 2023 with Ref. No. CEG/FIN/MTW02/CSI TZ/2023/11 (exhibit PE6); letter dated 3rd November, 2023 with Ref. No. AQUA POWER TANZANIA LTD/UNDER RECEIVERSHIP/14/2022 (exhibit PE7); letter dated 24th November, 2023 with Ref. No. AQUA POWER TANZANIA LTD/UNDER RECEIVERSHIP/15/2022 (exhibit PE8); letter dated 16th January, 2024 with Ref. No. AQUA POWER TANZANIA LTD/UNDER RECEIVERSHIP/16/2022 (exhibit PE9); cancellation of agreement letter dated 28th February, 2024 with Ref. No. AQUA POWER TANZANIA LTD/UNDER RECEIVERSHIP/20/22 (exhibit PE10); payment receipts dated 24th October, 2023, 10th November, 2023, 24th November, 2024, 30th November, 2023 and 25th January, 2024, together with the attached invoice dated 22nd December, 2023 and payment swift copy dated 13th September, 2023 (exhibits PE11, PE12, PE13, PE14, PE15 and PE16 respectively); letter dated 21st October, 2024 with Ref. No. AA/MMC/CSI/2024/10/21 on request

for clarification on land use over Plot No. 1, Block A, Hiyari, Mtwara District (exhibit PE17); reply letter dated 8th November, 2024 with Ref. No. MA.201/387/01/181 (exhibit PE18); demand letter dated 29th January, 2025 with Ref. No. APTL/BDHL/DEMANDS/01-2025 (exhibit PE19); and reply letter dated 21st January, 2025 with Ref. No. AA/CSI/AKB/21/01/25 (exhibit PE20). For the defence, eleven documentary exhibits were tendered. These were the witness statement of DW1 (exhibit DEI); deed of appointment of Receiver or Manager dated 24th October, 2022 (exhibit DE2); deed of appointment of Receiver or Manager dated 10th July, 2023 (exhibit DE3); Notice of Appointment of Receiver or Manager dated 25th October, 2022 (exhibit DE4); Notice of Appointment of Receiver or Manager dated 25th October, 2023 (exhibit DE5); witness statement of DW2 (exhibit DE6); letter dated 3rd November, 2023 with Ref. No. jgg/ADC/060823/006 (exhibit DE7); letter dated 13th November, 2023 with Ref. No. jgg/ADC/060823/008 (exhibit DE8); copy of the letter dated 22nd December, 2016 with Ref. No. MT/L20/13./102 (exhibit DE9); letter dated 4th January, 2024 with Ref. No. JGG/ADCA/020124/001 (exhibit DE10); and letter dated 8th February, 2024

with Ref. No. AQUA POWER TANZANIA LTD/UNDER RECEIVERSHIP/19/2022 (exhibit DE11). Evidence adduced by both parties, together with their respective closing submissions, are not going to be reproduced here. Instead, I will consider the same in the course of determining the issues framed. Beginning with the first issue, namely, whether there was a valid agreement between the parties. The plaintiff's position on this issue is that there was no valid agreement between the parties because the Agreement for Sale of Assets dated 7th September, 2023, exhibit PE3, was void ab initio. The plaintiff's argument is that the subject matter of the agreement was a 45 Megawatt gas-fired power plant erected on Plot No. 1, Block A, Hiyari Area, Mtwara, whose certificate of title carried land use conditions based on the Town and Country Planning (Use Classes) Regulations, 1960 as amended in 1993, which had already been revoked by the Urban Planning (Use Groups and Use Classes) Regulations, 2018, GN No. 91 of 2018. On that basis, the plaintiff contended that the subject matter of the agreement was unlawful, impossible to perform, and tainted with misrepresentation, since no change

of use had been endorsed on the certificate of title before the agreement was executed. On the other hand, the defendants maintained that exhibit PE3 was a valid and binding commercial agreement. Their position is that the agreement was voluntarily executed by the parties after public advertisement, bidding, award and due diligence. They argued that the plaintiff accepted the terms of sale, paid the initial deposit of USD 1,355,000, took possession of the power plant and landed property, and later sought extension of time to pay the balance of the purchase price. They further submitted that the assets were sold on an "as is where is" basis, and that the plaintiff, being a commercial purchaser, had the duty to satisfy itself on the suitability and legality of the subject matter before executing the agreement. From the pleadings and evidence on record, it is not disputed that there was an Agreement for Sale of Assets dated 7th September, 2023, exhibit PE3, executed between the 1st and 2nd defendants, acting under receivership, and the plaintiff. It is equally not disputed that the agreement related to the sale of the power plant and landed property at the purchase price of USD 13,550,000. PW1 admitted that the plaintiff paid USD 1,355,000 9

as 10% down payment, that the balance was to be paid in two instalments of USD 6,097,500 each, and that after execution of the agreement the plaintiff obtained access to the property. These facts, in my view, are strong indicators that the parties did not merely negotiate, but went further and created legal obligations under exhibit PE3. The plaintiff's challenge, however, is not that exhibit PE3 was not signed or that there was no consensus between the parties. Its complaint is that the agreement was invalid on account of the alleged defect in land use. I have considered that argument. It is true that the plaintiff relied on exhibit PE6, being the letter by CSI Energy Group Mauritius Limited withdrawing financing commitment on the ground that there was inconsistency in land use. However, PW1 conceded in cross-examination that the plaintiff did not tender the due diligence report allegedly prepared by CSI Energy Group Mauritius Limited. He also admitted that he had not seen any letter from CSI Energy Group Mauritius Limited addressed to Mtwara District Council, nor any communication by its attorneys to that Council. Therefore, the alleged due diligence finding was not proved by the maker of the alleged due diligence report or by the report itself. 10

I have also considered the plaintiffs reliance on the letters from Mtwara District Council. In cross-examination, PW1 was referred to exhibit PE17 and admitted that under the current law, the use of the land was accommodated. He further admitted that there was no inconsistency following the clarification on land use, although in re-examination he maintained that the plaintiff filed the suit believing that there was such inconsistency. In my view, belief alone cannot invalidate a written commercial agreement where the documentary evidence does not establish the alleged illegality of the subject matter. The evidence of DW2 is also relevant. Although he admitted that the 1960 Regulations as amended in 1993 had been revoked and replaced by the 2018 Regulations, he maintained that the title deed was not thereby revoked, and that the land remained suitable for the power plant use. He further referred to exhibit DE9 and the * clarification from Mtwara District Council to support the position that the property was designated for power plant use and that there was no need for change of land use. In re examination, DW2 stated that the applicable law during negotiation and sale was the 2018 Regulations, and that there was no hidden information concerning the land.

In the totality of the evidence, I am unable to agree with the plaintiff that exhibit PE3 was void ab initio. The mere fact that the old land use regulations were revoked and replaced by the 2018 Regulations did not, by itself, render the certificate of title invalid or make the sale agreement unlawful. There had to be cogent evidence proving that, at the time of execution, the power plant could not lawfully exist or operate on the suit land. That evidence was not sufficiently adduced. On the contrary, the evidence shows that the plaintiff had time to conduct due diligence before signing the agreement, executed exhibit PE3 after such process, paid the initial deposit, obtained access to the property, and continued to seek extension of time even after the alleged withdrawal of financing by CSI Energy Group Mauritius Limited. I am also of the view that the plaintiff's subsequent conduct does not support the contention that the agreement was void from inception. PW1 admitted that after exhibit PE6 was issued on 14th November, 2023, the plaintiff continued to engage the receiver manager and, by its letter of 4th January, 2024, reaffirmed its commitment to perform the agreement and sought further extension of time. He further admitted that the alleged inconsistency did not stop the plaintiff from seeking further extension and

that the plaintiff was still willing to proceed with the transaction. Such conduct is inconsistent with a party who considered the agreement void ab initio. Befoire winding up the 2n d issue, I need to restate the legal stance on the allegation of fraud in civil matters. In Ratilal Gordhanbhai Patel vs Lalji Makanji [1957] E.A. 314 at 316, the erstwhile Court of Appeal for East Africa articulated that: - "Allegations o f fraud must be strictly proved. Although the standard o f proof may not be as heavy as beyond reasonable doubt, something more than a mere balance o f probability is required. " Yet, in Omary Yusuph vs Rahma Ahmed Abdulkadr [1987] TLR 169, at page 175, the Court of Appeal observed thus: - "As shown ; the appellant came to court seeking to impugn the transfers o f the property alleging criminal conduct i.e. fraud on the parts o f the vendors, the purchasers and Mr. Ismail. I think it is now established that when the question whether someone has committed a crime is raised in civil proceedings that allegation need be established on a higher degree of probability than that which is reouired in ordinary civil cases , the logic and rationality o f that rule being that the stigma that attaches to an affirmative finding o f fraudjustifies the imposition o f a strict standard o f proof though as Rupert Cross cautions and illustrates in his text-book on 13

Evidence at page 124 the application o f that rule is not always commodious. In mv assessment and as demonstrated above , the evidence that was led against the purchasers and Mr. Ismai! fell short o f the required standard. I would accordingly dismiss the third ground." Moreover; in City Coffee Limited vs Registered Trustee of Ilolo Coffee Group (Civil Appeal No. 94 of 2018) [2019] TZCA 645 (1 November 2019) TapzLII as referred at page 35 in Azania Bank Limited vs Zilly Enterprises Limited and 2 Others (Civil Appeal No. 408 of 2021) [2024] TZCA 1122 (19 November 2024), the Court of Appeal observed that: ., it is dear that regarding allegations o f fraud in civil cases: the particulars o f fraud being a very serious allegation, must be specifically pleaded and the burden of proof thereof, although not that which is required in criminal cases; of proving beyond reasonable doubt, it is heavier than a balance of probabilities generally applied in civil cases." [See also: Lawrence Magesa T/A Jopen Pharmacy vs Fatuma Omary and Another (Civil Appeal No. 333 of 2019) [2022] TZCA 3048 (5 October 2022) TanzLII at p. 13] In the premises, guided by the above legal stance, I find that the plaintiff has failed to establish that the Agreement for Sale of Assets dated 7th September, 2023, exhibit PE3, was void ab initio on account of illegality, 14 (l

impossibility or fraudulent misrepresentation. On the balance of probabilities, the evidence proves that there was a valid agreement between the plaintiff and the 1st and 2nd defendants, executed under the receivership arrangement and acknowledged by the parties through performance and subsequent correspondence. Accordingly, issue No. 1 is answered in the affirmative. Having answered issue No. 1 in the affirmative, I now turn to issue No. 2, namely, what were the terms of the said agreement. In determining this issue, the starting point is the Agreement for Sale of Assets dated 7th September, 2023, exhibit PE3. The plaintiff, in its alternative submission, placed much reliance on clause 2.5 of exhibit PE3 and submitted that, even if the agreement is found to be valid, the right of forfeiture was not absolute, but was limited to actual and quantifiable claims for damages, costs, charges and expenses incidental to the agreement. The defendants, on the other hand, submitted that the material terms of the agreement were clear and included sale on "as is where is" basis, payment of the purchase price within specified timelines, assumption of risk by the purchaser, cancellation upon default and forfeiture of payments already made.

From exhibit PE3 and the evidence on record, the first material term was that the 1st and 2nd defendants, acting as receiver managers, agreed to sell to the plaintiff the power plant and landed property situated at Plot No. 1, Block A, Hiyari Area, Mtwara District. The sale was for a total purchase price of USD 13,550,000. Clause 2.2 of exhibit PE3 fixed that purchase price, while clause 2.3 provided the mode of payment. The plaintiff was required to pay USD 1,355,000 as 10% of the purchase price upon signing the agreement, and thereafter pay the balance of USD 12,195,000 in two equal instalments of USD 6,097,500 each, the first on or before 6th November, 2023 and the second on or before 6th January, 2024. This position was also confirmed by PW1 in cross-examination when he admitted that the plaintiff paid the 10% down payrpent and that the remaining purchase price was to be paid in two instalments of USD 6,097,500 each. The second material term was that the assets were sold on "as is where is" basis. Clause 2.1 of exhibit PE3 provided that the power plant and landed property were sold as they stood, and that the vendor made no warranty or representation as to merchantability, fitness for purpose, condition, state of repair or compliance with applicable law.

The third material term concerned due diligence and assumption of risk by the plaintiff. The evidence shows that the plaintiff entered the transaction after an opportunity to inspect and assess the assets. PW1 admitted that the agreement was executed after due diligence and that, after signing, the plaintiff obtained access to the property. The defendants also relied on clauses 20.3, 20.4 and 20.5 of exhibit PE3 to show that the plaintiff relied on its own opinion, professional advisers and independent inquiries before executing the agreement, and that it accepted the assets with full knowledge, of their state and condition. The fourth material term was on access, possession and transfer of ownership. Upon signing the agreement, the plaintiff was entitled to access the power plant and landed property, but transfer of ownership and title was to be effected only after full payment of the purchase price. This is also consistent with the evidence of DW2, who stated that after signing the agreement, the plaintiff was given access to the plant on 9th September, 2023, but ownership did not pass because full payment had not been made. The fifth material term related to costs of receivership. Under the agreement, costs incidental to receivership after access to the power plant and landed property were to be borne by the plaintiff. In his evidence, DW2 17 \h

explained that, since the plaintiff wanted to pay by instalments, it was agreed that the plaintiff would meet receivership costs while waiting to complete payment of the purchase price. He further admitted that invoices were raised for those receivership costs and that all those invoices were paid by the plaintiff. The sixth material term concerned default and its consequences. Clause 2.4 of exhibit PE3 provided that default in payment by the purchaser would entitle the vendor to repossess the power plant and landed property and treat the agreement as cancelled. Clause 2.5 further provided that, where the purchaser defaulted in completing the sale within the stipulated period, the vendor would be entitled to cancel the agreement upon giving at least seven days' notice in writing, and upon cancellation, the purchaser would forfeit its rights to the payments already made, which would be appropriated by the vendor towards claims for damages, costs, charges and expenses incidental to the agreement. The parties are not in agreement on the legal effect of this clause. The plaintiff reads it as requiring proof of actual damages, costs, charges and expenses before forfeiture, while the defendants read it as entitling them to retain the payments already made 18

upon default and cancellation. That disagreement is more relevant to issue No. 3 on breach. In the premises, I find that the material terms of the agreement were that the plaintiff was to purchase the power plant and landed property for USD 13,550,000; that the plaintiff was to pay USD 1,355,000 upon signing and the balance in two instalments of USD 6,097,500 each on or before 6th November, 2023 and 6th January, 2024 respectively; that the assets were sold on "as, is where is" basis; that the plaintiff relied on its own due diligence and assumed the risks associated with the condition and use of the assets; that access to the property was to be given upon signing while transfer of ownership was dependent upon full payment; that the plaintiff was to meet receivership costs during the subsistence of the arrangement; and that default in payment entitled the vendor, after notice, to cancel the agreement and invoke the agreed consequences under clauses 2.4 and 2.5. Accordingly, issue No. 2 is answered as stated above. The third issue is whether the defendants breached the terms of the agreement. In determining this issue, I have considered the Agreement for Sale of Assets dated 7th September, 2023 (exhibit PE3), the cancellation letter dated 28th February, 2024 (exhibit PE10), the plaintiff's and

defendants' correspondences, the evidence of PW1 and DW2, as well as the parties' respective closing submissions. The plaintiff's complaint under this issue is not merely that the agreement was cancelled, but that the defendants unlawfully forfeited the initial payment of USD 1,355,000. The plaintiff contended that clause 2.5 of exhibit PE3 did not confer an automatic right to retain the entire down payment. According to the plaintiff, the said clause allowed the defendants to appropriate any payments already made only towards proved claims for damages, costs, charges and expenses incidental to the agreement. It was therefore submitted that, since all receivership costs had been separately invoiced and paid, and since the defendants did not raise any quantified claim for damages, the forfeiture amounted to breach of the agreement. The defendants, on the other hand, submitted that there was no breach on their part. Their position is that it was the plaintiff who breached the agreement by failing to pay the balance of the purchase price within the agreed tirpe. They argued that the plaintiff was required to pay USD 6,097,500 on or before 6th November, 2023 and another USD 6,097,500 on or before 6th January, 2024, but failed to do so. According to them, after the plaintiff's continued default, they issued default notices, cancelled the 20

agreement and forfeited the initial payment in accordance with clauses 2.4 and 2.5 of exhibit PE3. From the evidence on record, it is clear that the plaintiff did not pay the balance of the purchase price as agreed. PW1 admitted in cross- examination that the plaintiff was supposed to pay the second instalment on 6th November, 2023, but did not comply. He further admitted that the plaintiff sought extension of time because it was still negotiating with TANESCO for a Power Purchase Agreement and was also sourcing funds from NMB Bank, but the said arrangements did not materialize. PW1 also admitted that those matters were not part of the conditions of the sale agreement for payment of the instalments. In that regard, the plaintiff's failure to pay the balance of the purchase price was not caused by any contractual default on the part of the defendants, but by the plaintiff's inability to fulfil its own payment obligations. It follows therefore that the defendants did not breach the agreement merely by issuing notice of default or by cancelling the agreement after the plaintiff failed to pay the outstanding purchase price. Clause 2.4 of exhibit PE3 entitled the vendor, upon default in payment by the purchaser, to repossess the power plant and landed property and treat the agreement as 21

cancelled. Further, clause 2.5 allowed cancellation after giving at least seven days' notice in writing where the purchaser defaulted in completing the sale within the stipulated period. In the circumstances, the cancellation itself cannot be treated as breach by the defendants because it was triggered by the plaintiff's own default. The remaining question is whether the forfeiture of the entire USD 1,355,000 was in accordance with the agreement. Clauses 2.4 and 2.5 of exhibit PE3 provides thus: - "2,4 Default in making any payments by the Purchaser as agreed under this Agreement will automatically and without further assurance and/or recourse to the Vendor discharge the Vendor from further obligations and shall be at liberty to repossess and dispose off the Power Plant and Landed Property as it shall deem fit For avoidance o f doubts, default in making payment shall nullify the Agreement and unless agreed otherwise, the Vendor shall treat this Agreement cancelled. 2.5 Without prejudice to Ciau se 2.4 hereinabove, if the Purchaser makes default in completing the sale, within the stipulated period under this Agreement, the Vendor shall be entitled to cancel this Agreement, thereafter by giving at least seven days notice in writing to the Purchaser to that effect and on cancellation o f the Agreement, the Purchaser will forfeit its right to the payments already made which will be appropriated 22

by the Vendor towards their claim for damages including the costs, charges and expenses o f and incidental to this Agreement" As excerpted above, under clause 2.5, the term of the agreement expressly stated upon cancellation of the agreement following default in making any payment by the purchaser under this agreement as stipulated under clau.se 2.4, led the said purchaser forfeit its right to the payments already made. It is trite that, parties to a contract are bound to perform their respective promises as it is so provided under section 37 (1) and (2) of the Law of Contract Act, I"Cap 345 R.E 20231. The sections read: - "S.37.- (1) The parties to a contract must perform their respective promises, unless such performance is dispensed with or excused under the provisions o f this Act or o f any other law. (2) Promises bind the representatives o f the promisor in case o f the death o f such promisor before performance, unless a contrary intention appears from the contract" In Abualy Alibhai Azizi vs Bhatia Brothers Ltd [2000] TLR 288, at page 289, expounding on the above provision, the Court of Appeal had this to underscore: - 23

"The principle o f sanctity o f contract is consistently reluctant to admit excuses for non-performance where there is no incapacity, no fraud (actual or constructive) or misrepresentation and no principle of public policy prohibiting enforcement / x Besides, the Apex Court in Uniliver Tanzania Ltd vs Benedict Mkasa Trading As Bema Enterprises (Civil Appeal 41 of 2009) [2016] TZCA 777 (9 March 2016) at page 16, had this to state: - ’! 'Strictly speaking under our laws, once parties have freely agreed on their contractual clauses, it would not be open for the Courts to change those clauses which parties have agreed between themselves . It was up to the parties concerned to renegotiate and to freely rectify clauses which parties find to be onerous. It is not the role o f the Courts to re draft clauses in agreements but to enforce those clauses where parties are in dispute." Reading the wording of clause 2.5, apart from binding the purchaser to have forfeited its right to the payments already made, the same provision does not offer her the right to question on how the forfeited money was appropriated by the vendor. In that regard therefore, having defaulted paying the instalment which led to the cancellation of the sale agreement, the plaintiff is barred from claiming refund the payments already made. That 24

said, under the third issue, whether the defendants breached the terms of the agreement, I hold that it is the plaintiff who breached Lastly, is issue No.4, namely; to what reliefs are the parties entitled. In resolving this issue, I am guided by the findings already made under issues No. 1, 2 and 3 above and thus hold that the suit by the plaintiff is devoid of merit and I hereby dismiss it with costs. It is so ordered Right of appeal explained. DATED at MBEYA on this 4th day of JUNE, 2026 Judgment delivered virtually at Mbeya sub - registry of the High Court in chamber on this 4th day of June, 2026 in presence of Mr. Athanas Wigan, learned advocate for the plaintiff and Ms. Caster Lufungulo, learned advocate for the defendant. Right of Appeal fully explained MUSA K. POMO JUDGE 04/06/2026 MUSA K. POMO JUDGE 04/06/2026 25