Esther Mkemanzi Rukamba vs Antonia Tonisiza Sangalali and Another (Civil Appeal No. 21063 of 2025) [2026] TZHC 2847 (29 May 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB - REGISTRY AT PAR ES SALAAM CIVIL APPEAL NO. 21063 OF 2025 (Originating from Civil Case No. 7301 of 2024 in the Resident Magistrate Court of Dar es Salaam at Kisutu) ESTHER MKEMANZI RUKAMBA ..................................................... APPELLANT VERSUS ANTONIA TONISIZA SANGALALI ..................................... 1 st RESPONDENT HERMES PETER NYARUBAMBA ........................................ 2 nd RESPONDENT JUDGMENT Date of Last Order: 26.02.2026 Date of Judgment: 29.05.2026 NGUNYALE, J. This is the first appeal against judgment and decree imposed by the Resident Magistrate Court of Dar es Salaam at Kisutu in favour of the respondents. The respondent sued the appellant under the tort of defamation alleging that she falsely and maliciously published and distributed defamatory statements against the respondents that they are involved in witchcraft, abduction, narcotic drugs, murder and cause 1

conflicts in the association of chiefs in Tanzania. According to the respondents, the statements are false and malicious intended to lower the reputation of the respondents in the estimation of the right-thinking members of the society. The appellant strongly denied having published the alleged defamatory statements, she prayed for dismissal of the suit with costs. At the conclusion of the trial, the trial Court was satisfied that the appellant uttered false and defamatory statements against the respondents and those statements were published through WhatsApp social media aiming to injure or cause harm to the reputation of the respondents. The respondent has no justifiable defence. The trial Court condemned the appellant one, to apologise through Mwananchi Newspaper and Daily News two, payment of general damages in the tune of TZS. 300,000,000/= to the respondents three, payment of interest of 7% per annum from the date of judgment till full satisfaction of the decree and four, costs of the suit. Aggrieved, the appellant preferred the present appeal through a/ memorandum of appeal containing the following grounds of appeal; - 2

1. That the trial Court erred in law and in fact by deciding the matter as Civil Case contrary to the pleadings under which the matter was filed in Court and entertained a petition.

2. That the Court erred in law and in fact in failing to decide the preliminary objection raised against an admission of exhibit Pl, which was an affidavit of authenticity of electronic evidence contrary to law and Court practice which compelled her to decide the objection after hearing submission from the parties' advocates and before proceeding with hearing of the matter on merits.

3. That having failed to decide the said preliminary objection, the Court erred in law and in fact by invoking provision of Section 8 (2) (d) of the Electronic Transactions Act, Cap 442 suo motu to admit the said affidavit Pl at the time of composing judgment contrary to the legal procedure on admission of exhibits and without affording the appellant the right to be heard on the application of the said section contrary to the rules of natural justice.

4. That the Court erred in law and in fact by deciding the case in favour of the respondents guided by, or basing her decision on, mater which were not pleaded by the respondents, including but not limited to the oral testimonies of the PW2, PW3, PW5 and PW6 by 3

5. That the Court erred in law and in fact by holding that the appellant sent defamatory messages to Fatuma Mkwawa and Shibuda Shangali while knowing that the said Fatuma Mkwawa and Shibuda Shangali were never called to testify in Court to confirm this fact and that there was no any documentary evidence to prove the said fact.

6. That the trial Court erred in law and in fact by holding that the voice message in the flash disc tendered by the PW1 were uttered by the appellant without establishing that the same were also published by the appellant while knowing that publication is a fundamental element of defamation.

7. That the trial Court erred in law and in fact by awarding general damages in the tune of TZS. 300,000,000/= as compensation to the respondent's loss of business without cogent evidence to prove the existence of such business and the degree of loss.

8. The trial Court erred in law and in fact by basing her decision on contradictory and inconsistent evidence of PW1 and PW4 on how the names of HERMES PETER were incorporated into the respondents' pleadings to form part of the pleaded defamatory statement.

9. The trial Court erred in law and in fact by passing a decree and making several orders therein without a declaration as to whether or not the respondents were defamed by the appellant.

10. That the trial Court erred in law and in fact by failure to properly analyse the evidence on record and by shifting the burden of proof to the appellant thereby arriving at the erroneous decision. The respondents filed their reply to the memorandum of appeal in which they disputed the grounds of appeal as raised by the appellant. The appeal was heard by way of written submission, the appellant submission was drawn and filed by DR. Abdon Rwegasira, Advocate from Law Care Chambers and the respondent's submission were drawn and filed by Kasaizi Andrew Kasaizi from Global Amicus Curiae (Advocates). I appreciate their role in preparing submissions, I am not going to reproduce them in this judgment but I will be referring to them in my determination of the issues. I have made a careful consideration of the grounds of appeal and established that the same are in two categories. The first category of the grounds of appeal are formed by the 1 st , 2 nd , 3 rd and 4 th grounds which are basically about pure points of law and the second category formed by the 5 th , 6 th , 7 th , 8 th , 9 th and 10 th grounds of appeal are directly concerned 5

with evidence and its analysis. In the determination of the appeal, I will start by considering the first category of the grounds of appeal and conclude by answering the second category of the same. I now start answering the grounds of appeal in the first category, I will start with the 1 st ground of appeal that the trial Court erred by deciding the matter as Civil Case contrary to the pleadings under which the matter was filed in Court and entertained a petition. The appellant submitted that they instituted the suit by way of petition and it was registered as Petition No. 7301 of 2024 however to their surprise, the trial Magistrate decided to treat the matter as Civil Case No. 7301 of 2024. It was the submission of the appellants that, the mistake was a fatal irregularity against the proceedings of the trial Court. The respondents submitted in reply saying that the matter was registered as a petition and it was heard as a petition. The naming of the case as Civil Case is self-regulated by the electronic case management system. The trial Magistrate has no control over the same, however the omission does not prejudice any of the parties. It is clear from the pleadings that the respondents filed the same as a petition per the petition dated 28 th March 2024. From that view, the respondents initiated the case as a petition as required by Rule 4 of the Media Service (Defamation Proceedings) Rules, 2019, Government Notice

No. 108 of 2019 made under part V of the Media Services Act, 2015. Since the matter was initiated as a petition, and by its nature, character and content it is a petition, it cannot easily change its status by just being named as a Civil Case. From that view, I am in support of the argument of the respondent that, the mistake does not prejudice any party to the case. The first ground of appeal is found without merit. The second and third grounds of appeal will be considered together. The appellant is complaining that the trial court erred in law and fact by one, omitting to decide the preliminary objection raised against admission of exhibit Pl an affidavit of authenticity of electronic evidence when it was tendered by PW1 two, the Court invoking Section 8 (2) (d) of Electronic Transaction Act suo motu to admit the exhibit Pl at the time of composing judgment without affording the parties the right to be heard. From the submission of the parties, it is not in dispute that the appellants Counsel raised an objection when PW1 was tendering an affidavit of authenticity and both sides were sufficiently heard about the objection. Upon hearing the parties, the trial Magistrate admitted the exhibit Pl affidavit of authenticity of electronic evidence and P2 massage print out and flash disc after being cleared for admission reserving the decision about the substance in the objection. The substance of the objection was 7

that, the affidavit of authenticity did not show the source of the information if it was a phone there was no paragraph saying that it was a phone and that the witness said that he downloaded using his computer but he did not mention model of a computer and printer which was used. From the outset, it is not true that the parties were not afforded a right to be heard as submitted by the appellant Counsel. They were sufficiently heard and the exhibits were accordingly cleared before admission. The exhibits which PW1 wanted to tender were read and the external device was played for the Court and the parties to hear in Court. As far the admission of exhibits is concerned, it is obligatory for the exhibit to be cleared before admission. This position was stated in the case of Robinson Mwanjisi & 3 Others v. The Republic [2003] T.L.R 218 that: "Whenever, it is intended to introduce any document in evidence, it should first be cleared for admission" In this case, the two exhibits were properly cleared for admission, the court reserving the ruling till final stage was not a mistake. It was not an irregularity to reserve such a decision to a later stage because the exhibits met the admissibility test, the remaining issues were going to the weight of the evidence itself. It was correct to deal with them at a later stage during evaluation of evidence. Section 8 (2) of the Electronic Transactions Act as correctly stated by the trial Magistrate enjoins the 8

Court with discretionary power to decide whether electronic evidence is admissible or not without requiring one to produce an affidavit or certificate. In this case, the witness PW1 established how the evidence was obtained by using his phone and his compute. Therefore, the 2 nd and 3 rd grounds of appeal are found to be without merit. The appellant in the fourth ground of appeal he complained that the trial Magistrate confined itself to decided basing on matters which were not pleaded by the respondents in the pleadings the move which is contrary to rules of pleadings. Essentially, parties are bound by their own pleadings, any form of departure from the pleadings is an irregularity. In Registered Trustees of Roman Catholic Archdiocese of Dar es Salaam versus Sophia Kamani (Civil Appeal No. 158 of 2015) [2017] TZCA 1007 the Court of Appeal stated categorically: "... it is trite principle of law that parties are bound by their pleadings. In civil litigation, it is through pleadings where parties establish their cases they intended to prove. So, it is the duty of the parties to the case to clearly and categorically establish their cases before adjudication. In that context therefore, pleadings are road map so to say to any given civil litigation which should show the destination the parties to the case intended to reach... " I had time to revisit the petition, the reply to the petition and the evidence on record. From that exercise of revisiting the record, it is evident that the respondents pleaded that they were defamed by. the appellant who 9

published the defamatory statement in the WhatsApp group where Tanzania Chiefs were members. Even the evidence has been lined up conforming to the pleadings and not otherwise. In that regard I find no reason to spend more time on this ground. The ground of appeal is dismissed on its entirety. In the second category of the grounds of appeal the main issue to be answered is whether the tort of defamation was established in this case. In answering this issue, I will confine myself to the rules of evidence and its analysis by considering the essential elements of the tort of defamation. This move will sufficiently dispose the rest of the grounds of appeal. It is the law that the one who alleged must prove the allegation. The respondents in this case were in prima facie duty to prove that they were defamed in the meaning of the law. Statutory provision together with case laws are clear on this, Section 117(1) of the Tanzania Evidence Act (Cap 6 R.E 2023) explicitly provides that: "Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. " Also, the Court of Appeal in FB General Contractors ana Another vs Bank of Baroda Tanzania Limited (Civil I No. 202 of 2022) io

[2025] TZCA 61 (24 February 2025) referred with approval its own decision in Anthony M. Masanga v. Penina (Mama Mgesi) & Lucia (Mama Anna) (Civil Appeal No. 118 of 2014) [2015] TZCA 556 (18 March 2015), where it was held that: "...Let's begin by re-emphazing the ever cherished principle of law that generally in civil cases; the burden o f proof lies on the party who alleges anything in his favour. are fortified in our view by the provisions of sections 110 and 111 of the Law of Evidence Act, Cap 6 of the Revised Edition 2002" In my determination of this appeal, I will remain actively aware to the principles of evidence referred above. In resolving these grounds of appeal, this Court will be mindful to its role as a first appellate court, which entails re-evaluating and re-appraising the entire evidence on record and arriving at its own conclusions of both fact and law. In doing so, the Court is required to give due weight to the findings of the trial court but is not bound by them, particularly where it is demonstrated that the trial court misapprehended the evidence or applied wrong legal principles. This appellate duty was articulated in the landmark case of Peters v Sunday Post Ltd [1958] EA 424, where the then East African Court of Appeal held that: "Whilst an appellate court is always reluctant to interfere with a finding of fact by a trial judge, especially where the issue turns on credibility, it is nonetheless its duty to rehear the case and to 11

reconsider the material before the judge with such other material as it may have decided to admit. " This principle has been restated and applied in several decisions of the Court of Appeal, including Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021) and Damas Sigera v Republic, Criminal Appeal No. 20 of 2009. Having set out the applicable principles governing the duty of a first appellate court, this Court proceeds to consider the substance of the appeal by re- evaluating the evidence on record to find out whether the tort of defamation was established. My starting point is to understand the meaning of the term "defamation" as defined by the legal authorities. In Black Law Dictionary 2004, 8 th edition at page 1260, the term defamation has been defined to mean; "The act of harming the reputation of another by making a false statement to a third person" In the case of Hamis vs. Akilimali (1971) HCD 111 it was defined as; "..communicating to the mind of another, matters which are untrue and likely in the cause of things substantively to disparage the reputation of the third person" The above position was also underscored in the case of Safari Mwazembe v Juma Fundisha (Civil Appel 14 of 2020) [2020] TZHC 12

3568 (1 October 2020) in which this Court sitting at Mbeya ended with the position above. For the tort of defamation to be established, the complainant is bound to prove that one, such statement must be defamatory two, the defamatory statement was referred to the complainant three, the defamatory statement was published to the third party and four, the victim must be damaged or injured by those defamatory statements. In the case of Tito Peter Mwakyusa v. Juma Abdallah Kapikulira, DC Civil Appeal Case No. 12 of 2019 (HC at Mtwara, reported at Tanzlii) amplified the definition of defamation by providing five essential elements to be proved by the claimant for a claim on defamation to be successful. He stated that: "First, the statement complained of was defamatory. Second, the statement was published. Third, the statement was false. Fourth, the statement was injurious to the appellant's reputation. And fifth, the statement was unprivileged. " After considering the above legal guidance, I now proceed to evaluate the evidence on record to establish whether the elements mentioned above were met by the respondents. The appellant Counsel in his submission stated that the statements were never uttered by the appellant and in fact they were not defamatory as alleged. His submission was contested by the respondent's Counsel who supported the findings of the trial Court. The perfect answer will come from evidence. The testimony of PW1 was 13

to the effect that he is a chief of Simiyu Maswa District and Chairman of Chiefs in Tanzania. He has a reputation which he has made and maintained for over 40 years. He is a respected leader and as a Chairman of all Chiefs in Tanzania. Without justification the appellant defamed him saying he is a witch, drug dealer and a source of conflicts among the chiefs and he is a corn man. In her own words, the appellant said that "acha haraka biashara ya madawa ya kulevya, tafuta kazi nyingine ya kufanya". He also said that the 1 st respondent killed one Felister by putting her in narcotic drugs. His evidence was corroborated by PW2 and PW3. PW3 who is also a Chief said that those defamatory statements were communicated through WhatsApp ground of the union of chiefs. The appellant in her defence, denied having uttered those defamatory statements alleging that event the phone number mentioned is not her number. She prayed the Court to dismiss the matter with costs. From the evidence on record, the respondent as a chief of his locality and a chairman of the chiefs in Tanzania his reputation was high. The oral testimony made by respondents establish that the appellant uttered those words through WhatsApp group without legal justification. Initially, the appellant was a member of the WhatsApp group of the union of chiefs in Tanzania however at a late stage they came to realize that she is not a 14

chief particularly when she uttered those defamatory words. PW3 testified to the effect that he saw in the group of Chiefs the words that the 1 st respondent deals with narcotic drugs, he is a thief, a corn man, abductors and murderer. The massage she saw in the WhatsApp group of the union of Chiefs. I have no doubt that the appellant uttered those words as proved by the respondents in their oral testimony. Exhibit P2 was good evidence of those words which were sounding to be defamatory The words were defamatory in nature because they were false and made intentional without justification. The reasonable man who will come across those statements against the Chief will no longer respect him anymore. There is no doubt that his solid reputation was significantly lowered in the eyes of any right-thinking member of the society because the statements were purely defamatory in nature. The witness PW1 testified expressly that, the appellant defamed him by saying that he is a witch, a drug dealer and a source of conflicts among the chiefs in Tanzania. The testimony of PW2 and PW3 corroborated the fact that the defamatory statements were directed to the respondents. The denial by the appellant (DW1) is without effect because there is direct evidence that the utterances were directed to the respondent. Therefore, 15

the defamatory statements were directed to the respondent by the appellant. The third important thing to be considered is whether the defamatory statements were published to the third party. I think this is the issue which should not detain long the court because, the evidence is very direct that the said statements were published through WhatsApp group where there are third parties including PW3 the chief of Mtwara. Though the statements were published, the evidence is very clear that it ended to few members of the WhatsApp group. The statement spread to a sizeable number of people. The fact that they spread to a sizeable number of people means its impact is also law. The other issue is whether the victim was damaged or injured by those defamatory statements. By considering the nature of the statement of the appellant and the solid reputation of the respondent as a Chief and a chairman of all Chiefs in Tanzania, without doubt his reputation was lowered in the eyes of any right-thinking member of the society. Reading between lines the statements made, particularly the assertion that he is a murderer and a drug dealer, none will respect or trust him anymore. His people in his chiefdom and among the chief's union would look at him in 16,

a disrespectable manner. Those acts injure his feelings taking into account that the statements are not privileged or true. Therefore, my careful analysis of the evidence, I am convinced that the respondent was defamed by the appellant who published defamatory statements against him. I thus support the findings of the trial court that defamation against the respondents was established, she deserved the reliefs sought. However, the scope of the publication was limited to few members in the WhatsApp group, there is no evidence proving that there was a wide circulation of the defamatory statement beyond the members of the said group. The said limitation limits the extend of granting general damages to the respondents. The trial Magistrate did not apply properly the principles of assessing general damages in defamation cases. Among the factors to be considered in awarding damages in defamation cases is the extend of publication or dissemination of the defamatory statement. A proper remedy in the circumstance is to reduce the amount awarded as general damages. Save for the issue of general damages, the trial Magistrate was good in abiding to the rules relevant in defamatory cases by compensating to reputation, vindicating the plaintiff's good name by ordering steps of apology and taking into account of the distress, hurt 17

and humiliation suffered. (See the case of Professor Ibrahim H. Lipumbe versus Zuberi Mzee [2004] TLR 381). In sum, the appeal is partly allowed. The findings of the trial court remain undisturbed save for the general damages which are reduced to TZS. 30,000,000/=. The respondents deserve costs at the trial and this appellate stage. Order accordingly. Dated at Dar es Salaam this 29 th day of May i s (wBS P. Ngunyale JUDGE this 29 th day of May, 2026 in presence of Mr. Judgement 18