Mukwaji Mugeta vs Kikundi Cha Huduma Ndogo Za Fedha Cha Umoja Na Ushirikiano Buanga (PC Civil Appeal No. 10553 OF 2025) [2026] TZHC 3124 (1 June 2026)

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) PC Civil Appeal No. 10553 OF 2025 (Arising from the District Court of Musoma at Musoma in Civil Appeal No. 32090 of 2024 originated from Musoma Primary Court at Bwasi in Civil Case No. 180 of 2024) MUKWAJI MUGETA ........................................................ APPELLANT Versus KIKUNDI CHA HUDUMA NDOGO ZA FEDHA CHA UMOJA NA^ .................... RESPONDENT USHIRIKIANO BUANGA J RULING 01.06.2026 & 01.06.2026 Mtulya, J.: In the present appeal, the record shows that Kikundi cha Huduma Ndogo za Fedha cha Umoja na Ushirikiano Buanga (the respondent), had sued Mukwaji Mugeta (the appellant) at Musoma Primary Court located at Bwasi (the primary court) in Civil Case No. 180 of 2024 (the case) for allegation of unpaid debt amounting to Tanzania Shillings 616,000/= and further claimed compensation of Tanzanian Shillings 300,000/=. The case was schedule for hearing on 17 th October 2024, and the parties were ready for hearing proceedings, and all three (3) prosecution witnesses were heard to the finality, without being assisted in framing issues by the learned i

magistrate of the primary court. The case was then set for defence hearing in three (3) witnesses and were heard to the finality. At the conclusion of the hearing proceedings, the case was marked closed. After the closure of proceedings, the primary court had issued its decision in favour of the respondent, and ordered the appellant to pay the respondent Tanzanian Shillings 594,000/= as a debt and Tanzanian Shillings 60,000/= as costs of the suit. The appellant was aggrieved by the decision hence preferred Civil Appeal No. 2090 of 2024 (the appeal) at the District Court of Musoma at Musoma (the district court) which was dismissed for want of merit. The appellant was dissatisfied by the dismissal order hence lodged PC Civil Appeal No. 10553 (the appeal) in this court complaining on Locus Standi of the respondent and discrepancies of evidences produced by Messrs. Manyama Mutesigwa (PW1) and Mbuya Mafuru (PW2). Today morning the appeal was scheduled for hearing proceedings in this court, and both parties preferred legal service of Ms. Mary Joakimu and Mr. Emmanuel Gervas, learned counsels for the appellant and respondent respectively. The learned minds had long submissions in favour and against the appeal for almost three hours, but in the midst of contests of discrepancies of the evidence, and want of major and minor discrepancies to the issues, this court, in a suo moto move had noted that the primary court had declined to frame or facilitate the parties to draw issues. The court then had 2

invited the learned minds of the parties to something on the indicated irregularity. The parties learned minds had then admitted the fault but had different views on the appropriate available remedies. According to Ms. Joakimu, judgments of courts are extracted from proceedings and if proceedings do not reflect issues, then the entire proceedings are nullity. Regarding the way forward, Ms. Samson thought that this court may set aside all proceedings and quash judgment in favour of a fresh and proper case. On the other hand, Mr. Gervas thinks that the appropriate remedy is to set aside proceedings from when the primary court had declined framing of issues, that is 17 th October 2024. I have perused the record of appeal, Rule 44 of the Magistrates 7 Courts (Civil Procedure in Primary Court) Rules, GN. No. 310 of 1964 (the Rules), and precedent of the Court of Appeal in Abel Edson Mwakanyimale v. NBC (1967) Ltd, Civil Appeal No. 63 of 2003, and clasped three (3) issues, namely: first, the record shows that the parties were called at the primary court for hearing on 17 th October 2024, and were heard to the finality of the contest without knowing or ascertaining their real contest before the primary court. The record is silent on either formulation of issues or facilitation of the parties to formulate issues. 3

Secondly, I noted Rule 44 of the Rules provides that: at the first hearing of a proceeding the court shall ascertain from each party whether he admits or denies the allegation made against him by the other party and shall record all admission and denials and shall decide and record what matters are in issues. From the record, it is obvious that the Rule was breached by the primary court, and the breach is fatal irregularity (see: Edson Mwakanyimale v. NBC (supra). Regarding the appropriate available remedies, the Court of Appeal in the decision of Edson Mwakanyimale v. NBC (supra) took the view that the proceedings from when the irregularity started must be set aside for want of proper record of the court. The thinking is now settled and certain in the Court of Appeal and this court (see: Celina Michael v. Mtanzania Newspaper & Six Others, Civil Appeal No. 320 of 2017 and Wilfred Maro V. Saraha Lotti Mbise & Three Others, Civil Appeal No. 64 of 2020). It is a settled principle of law that this court cannot step into the shoes of the primary court to frame and determine issues that were not framed and resolved by the primary court. At least, issues concerning points of law, such as jurisdiction or limitation, this court may ^resolve them to set record precise (see: Hotel Travertine Limited & Two Others v. National Bank of Commerce Limited [2006] TLR 133). 4

In the end, I invoke the provision of section 31 (2) of the Magistrates' Courts Act [Cap. 11 R.E. 2023] to allow the appeal and set aside proceedings of the primary court starting from 17 th October 2024 to the finality and I am moved further to quash the judgment issued on 13 th November 2024 for want of right record of the court. Having setting aside the proceedings of the primary court from 17 th October 2024 and quashing its associated judgment of 13 th November 2024, and considering interests of justice, I remit back the case file to primary court for the case to be heard from the stage Court: This Ruling was delivered in chambers under the seal of this court, this 1 st day of June 2026, in the presence of Messrs. Manyama Mtesigwa and Mbuya Mafuru for the respondents and in the presence of the appellant Ms. Mukwaji Mgeta, and their learned counsels, Ms. Mary Joakimu and Mr. Emmanuel Gervas, for the appellant and respondent respectively. F. H. Mtul/a Judge v 01.06.2026 5