Frank Wilson Zebaza vs UDA Rapid Transport Limited Company and 3 Others (Civil Case No. 28992 of 2024) [2025] TZHC 8477 (19 December 2025)

Page 1 of 20 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB - REGISTRY AT DAR ES SALAAM CIVIL CASE No. 28992 OF 202 4 FRANK WILSON ZEBAZA …………………………… ............................ PLAINTIFF VERSUS UDA RAPID TRANSPORT LIMITED COMPANY [UDART]........1 ST DEFENDANT HAFIDHI ALLY.......... .......................................................... ..2 ND DEFENDANT NATIONAL INSURANCE CORPORATION........... ................... .3 RD DEFENDANT ATTORNEY GENERAL... ......................................................... .4 TH DEFENDANT JUDGEMENT Date of last order: 08 /1 2 /2025 Date of Judgement: 19 /1 2 /2025 MWAKAPEJE, J.: The plaintiff instituted the present suit , claiming against the defendants for the following:

1. An order for payment of Tshs. 350,000,000/ - (Tanzania shillings Three Hundred and fifty million) as special damages for expenses incurred on medical treatments and other related expenses .
2. An order for payment Tshs. 150,000,000/ - (Tanzania shillings One hundred and fifty million) being general damages for pain and suffering.
3. An order for payment of punitive damages to the tune of Tshs. 100,000,000/ - (Tanzania shillings One hundred million)
4. Costs of this suit .

Page 2 of 20 5. Interest thereon at Court rates at the prevailing rate from 30 September 2023 until payment in full. 6. Such other or further relief(s) as this Honourable Court may deem fit and just to grant . Upon being served with the plaint, the 1 st , 3 rd , and 4 th defendants filed their joint written statement of defence (WSD) denying liability and praying for the dismissal of the suit with costs. The 2 nd d efendant neither filed a defence nor entered an appearance despite efforts to secure his attendance, leading the Court to order the matter to proceed ex parte against him. The plaintiff's case is that on 30 September 2022, while walking along Morogoro Road in Ilala, Dar es Salaam, he was knocked down by a rapid bus , Golden Dragon, with registration No. T132 DGW, owned by the 1 st d efendant, insured by the 3 rd d efendant and negligently driven by the 2 nd d efendant. He attributes the accident to reckless and excessive speeding, failure to observe traffic rules, and lack of proper control over the vehicle. The accident was reported to the police , and he was issued a PF3 for treatment. The p laintiff claims he suffered severe head injuries resulting in mild traumatic brain injury and other complications such as loss of smell, recurring headaches, light sensitivity and memory lapses, causing

Page 3 of 20 permanent loss of earning capacity and career prospects. He states he has continued to receive costly medical treatment at MOI. He further avers that the 2 nd d efendant was charged, convicted , and sentenced for careless driving arising from the same accident, thereby rendering the 1 st defendant vicariously liable as the vehicle owner and the 3 rd defendant liable as the insurer. He add ed that an earlier suit was withdrawn to correct the vehicle registration number, after which he complied with statutory notice requirements and attempted settlement without success , thus necessitating the hearing of the case. During the Final Pre - trial Conference, the following issues were proposed by the court and mutually agreed upon by the learned advocates between parties and recorded for the determination of this suit, to wit:

1. Whether the 1 st defendant's car was involved in the accident.
2. I f the 1 st issue is answered in the affirmative, whether the 2 nd defendant drove the 1 st defendant's car negligently.
3. Whether the 1 st defendant is vicariously liable for the acts of the 2 nd defendant
4. Whether the 3 rd defendant is liable to indemnify/ compensate the plaintiff for the loss suffered.
5. To what reliefs are the parties entitled ?

Page 4 of 20 At the hearing of the suit, the plaintiff was represented by Ms. Habiba Katwe, a learned advocate; the 1 st , 3 rd , and 4 th defendants were represented by Ms. Jesca Shengena, learned Principal State Attorney, and Messrs. Mathew Fuko and Abeid Buzohela, learned State Attorneys. The plaintiff was the sole witness to prove his claims, while the 1 st and 3rd defendants had two witnesses. In establishing his case, the plaintiff , Frank Wilson Robert (PW1) , under oath , testified that on 30 September 2022 at around 5:20 P.M. , he was lawfully crossing a zebra crossing at Ka ria ko o (fire area) along Morogoro Road when he was suddenly struck by a motor vehicle allegedly belonging to the 1 st defendant . He asserted that he had the right of way as traffic signage permitted pedestrians to cross. According to him, the vehicle knocked him down while he was on the third white line of the zebra crossing, causing him severe head injuries that rendered him unconscious. He recalled regaining consciousness at the hospital, where he learned from relatives that the police had issued PF3 for his treatmen t. The document was admitted as Exhibit P1 . He further testified that he was hospitalised at Muhimbili National Hospital (MOI), where a CT scan revealed a fractured skull on the right side of his head, necessitating brain surgery. He explained that he was instructed to stay in a quiet environment during recovery and relocated

Page 5 of 20 to Mikocheni from Makondeko for medical reasons. He demonstrated the surgical scar on his head . He explained that he suffers from sensitivity to cold and light, frequent headaches, and memory gaps, leading the court to turn off the air conditioner for him to continue testifying. He produced a medical report issued by MOI and medical receipts showing payment for treatments and related expenses, out of which 22 were admitted . Both were admitted as Exhibit s P2 and P3 , respectively . PW1 stated that he later confirmed from the police that the driver, one Hafidhi Ally, had been convicted in relation to the accident. The court admitted a copy of the decision tendered by him as Exhibit P4 . He also produced a 90 - day statutory notice issued through his advocate to the defendants, admitted as Exhibit P5, and a copy of proceedings from a previous case withdrawn to correct a wrong vehicle registration number T132DGV , admitted as Exhibit P6. He concluded by asking the court to enter judgment in his favour. During cross - examination, he insisted that he was knocked down by a motor vehicle with registration number T132 DGW and denied forging any documents. He admitted that the document tendered as Exhibit P4 contained a changed registration number, but maintained that the court clerk made the correction . He reiterated that both police documents and court records confirm the vehicle registration number T132 DGW.

Page 6 of 20 On defence, Amani Kabela , DW1 , a Claims Officer with the National Insurance Corporation (NIC), under oath, testified that the 1 st defendant's vehicles are insured with the 3 rd defendant. He asserted that the plaintiff's claim could not be processed because the motor vehicle registration number presented in the earlier claim was T132 DGV, which he stated was not insured with NIC. He explained that NIC wrote to the trial District Court seeking clarification on wh ich motor vehicle was involved in the accident between T132 DGW or T132 DGV. The court responded, citing T132 DGV, which led NIC to reject liability. The correspondence was admitted as Exhibits D1 and D2. He therefore prayed that the suit against NIC be dismissed. Under cross - examination, DW1 admitted that the accident was reported to the police and that the driver, Hafidhi Ally, was charged and convicted. He further acknowledged that NIC did not review the entire court file and that he could not confirm whether the driver was an employee of UDART at the time. He also conceded that he had no evidence to dispute that Hafidhi Ally was driving a vehicle insured by NIC. DW2 , Zubeda Ally , as a Legal Officer with UDART , testified that the Plaintiff falsely claims that a UDART vehicle was involved in the accident. She argued that the plaintiff's Exhibit P4 is unreliable because it shows conflicting registration numbers. Relying on Exhibit D2, she maintained

Page 7 of 20 that the vehicle involved was T132 DGV, which she asserted does not belong to UDART, and therefore prayed that the case be dismissed against UDART. During cross - examination, DW2 maintained that although she serves as a legal officer at UDART, she does not handle employment records and therefore could not confirm whether the driver involved in the accident, Hafidhi Ally, was employed by UDART at the ma terial time. She explained that the company's drivers operate in shifts and that the Human Resources Department maintains information on their contracts and assignments . DW2 further conceded that she had no documentary evidence proving that Hafidhi was not driving a UDART vehicle on the date of the accident, nor any proof to show that he did not cause the accident. She , however, acknowledged that the company (UDART) was informed that Hafidhi Ally had been charged with a traffic offence. In response to the Court's clarification, DW2 confirmed that Hafidhi Ally had indeed been charged with traffic offences arising from the accident and that court records show he was found guilty. Having thoroughly evaluated the testimonies and documentary evidence submitted by both parties, the Court now proceeds to determine the issues framed for adjudication, beginning with the first.

Page 8 of 20 It is essential to restate the fundamental principle governing civil proceedings: under s ections 117 and 3(2)(b) of the Evidence Act, Cap. 6 R.E. 2023 , a party who alleges a fact bears the duty to prove it against the opposing side. This burden of proof must be discharged on a balance of probabilities. The Court of Appeal underscored this position in Anthony M. Masanga vs Penina (Mama Mgesi) and Another (Civil Appeal No. 118 of 2014) [2015] TZCA 556 (18 March 2015), where it was held that: "In civil cases, the Burden of proof lies on the party who alleges anything in his favour: It is common knowledge that in civil proceedings, the party with the legal burden also bears the evidential burden, and the standard in each case is on the balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other on a particular fact to be proved . " [Emphasis supplied] In this case, i n resolving the first issue regarding whether the 1 st defendant's motor vehicle was involved in the accident, the Court must consider the totality of the evidence rather than focusing solely on discrepancies in the registration number. The plaintiff tendered proceedings in the traffic case (Exhibit P4), which identified the vehicle as a Golden Dragon bus alleged to bear registration number T132 DGW. On the other hand, the 3 rd defendant, through official correspondence from the District Court (Exhibit D2), received clarification that the vehicle in the traffic case was re corded as T132 DGV.

Page 9 of 20 In th is Court's considered view, the inconsistency surrounding the registration number of the motor vehicle involved in the accident is purely clerical and does not affect the substance of the matter. The discrepancy is evidently attributable to errors arising from the p reparation or transcription of official documents, particularly in the traffic proceedings and subsequent correspondence. Such inconsistencies, while regrettable, are not uncommon in administrative documentation and cannot supersede the tota lity of uncontested facts linking the accident to the 1 st defendant's motor vehicle. What is critical, and indeed undisputed, is that the vehicle involved belonged to the 1 st defendant, was operated under the management of UDART, and was being driven by the 2 nd defendant, Hafidhi Ally, at the material time. The record further demonstrates that Hafidhi was arrested, charged, prosecuted, and convicted for dangerous driving arising from the same incident. This conviction directly links the accident to the driver acting in the course of his duties for the 1 st defendant. Notably, DW2 confirmed that the company was formally notified of the accident and the traffic proceedings against its employee, even though she did not personally possess employment or vehicle assignment records. Her admission effectively corroborates the plaintiff's narrative , placing UDART's vehicle at the centre of the incident.

Page 10 of 20 Furthermore, the traffic proceedings in which the plaintiff is expressly named as a victim establish that a Golden Dragon bus operated by UDART and driven by Hafidhi Ally was the cause of the accident. The identity of the plaintiff as a victim, the undispu ted involvement of the Golden Dragon bus, and the conviction of the driver together provides coherent, mutually reinforcing evidence. These facts collectively outweigh any clerical irregularities in the registration number, which do not impeach the authent icity of the proceedings or the causal link between the vehicle and the accident. Accordingly, the Court is satisfied , on the balance of probabilities required in a civil claim, that the vehicle owned and operated by the 1 st defendant was indeed involved in the accident in which the plaintiff was injured. The first issue is , therefore , answered in the affirmative. Turning to the second issue , whether the 2 nd defendant acted negligently , the Court finds that the plaintiff's testimony clearly established the circumstances of the accident. The plaintiff was lawfully using a designated pedestrian crossing (zebra crossing) after traffic had been stopped by red lights. His position was that he crossed only when the traffic signal permitted pedestrians to do so. Crucially, this evidence was never challenged or rebutted by the defence. No contrary version of

Page 11 of 20 events was offered, and no witness for the defence disputed that the plaintiff had rightfully entered the crossing zone at the time of impact. Moreover, the traffic case proceedings against the 2 nd defendant provide strong corroborative proof. The driver, Hafidhi Ally, was formally charged, prosecuted, and convicted for dangerous driving arising from the same incident. The conviction, which stands unchallenged and unreversed, carries substantial evidential weight in establishing negligent conduct, particularly where the charge relates to factual circumstances identical to those bef ore this Court. The findings of the traffic court, being judicially determined facts, reinforce the conclusion that the 2 n d defendant failed to observe the required standards of road safety. The negligence is further accentuated by the location of the accident. Zebra crossings are specifically designed to protect pedestrians, and drivers approaching them are legally obliged to slow down, exercise heightened caution, and stop where pedestrians have the right of way. The very purpose of a controlled crossing is to give priority to pedestrians, and failure to adhere to such signals constitutes a breach of statutory and common law duty of care. In this case, the 2 nd defendant proceeded in reckless disregard of traffic signals and pedestrian rights, resulting in serious bodily injury to the plaintiff. His conduct was not merely an unfortunate mishap but a

Page 12 of 20 clear violation of the duty owed to road users. Accordingly, based on the plaintiff's uncontroverted testimony, the existence of judicial confirmation of dangerous driving , and the legal duty imposed on drivers at pedestrian crossings, the Court is satisfied that the 2 nd defendant was negligent. The second issue is therefore answered in the affirmative. With respect to the third issue , whether the 1 st defendant is vicariously liable , the Court applies the established doctrine of vicarious liability, which holds an employer legally responsible for wrongful acts committed by an employee in the course and scope of their employment. The underlying rationale is that employers exercise contr ol over the manner in which employees perform their duties and derive economic benefit from their work. Consequently, they must also bear the risks arising from the execution of those duties. In the present case, it has been established that the 2 nd defendant, Hafidhi Ally, was operating a bus owned and managed by the 1 st defendant at the time of the accident. The traffic court's proceedings and subsequent conviction for dangerous driving directly link the accident to his performance of duties associated with his employment. Although DW2 did not produce employment records, she acknowledged that the 1 st defendant was notified of both the accident and the prosecution of the traffic case of its dri ver. Her inability to tender employment documents

Page 13 of 20 does not negate the Company's knowledge of the incident nor the driver's association with UDART. Importantly, no evidence was presented to suggest that the 2 nd defendant was acting outside the scope of his employment. Accordingly, given that the negligent acts were committed in the course of employment while operating the 1 st defendant's motor vehicle, the Court finds that the 1 st defendant is vicariously liable for the wrongful conduct of its driver. The third issue is therefore answered in the affirmative. Turning to the fourth issue, namely whether the 3 rd defendant is liable to indemnify the plaintiff, the Court considers the evidence presented relating to the insurance coverage of the motor vehicle involved in the accident. Exhibit D1, produced by DW1 , demonstrates that the insured motor vehicle under the policy issued to the 1 st defendant bears registration number T132DGW. Conversely, the traffic proceedings, as reviewed earlier, refer to a motor vehicle bearing a different registration number , i.e., T132DGV . Although the Court has found that the discrepan cy is clerical and that the 1 st defendant's vehicle was indeed involved in the accident, the issue before the Court at this stage is whether the insurer is bound to indemnify the plaintiff.

Page 14 of 20 In insurance contracts, liability arises strictly from the terms of the policy, including the identity of the insured motor vehicle. The insurer's obligation to indemnify is contingent on proof that the specific vehicle involved in the accident is the exact vehicle covered under the policy. Owing to the uncertainty created by the differing registration numbers and in the absence of conclusive evidence directly connecting the insured vehicle (T132 DGW) to the vehicle cited in the traffic proceedings (T132 DG V) , the Court cannot, in law, extend liability to the insurer. Where there is reasonable doubt regarding whether the insured property is the one implicated in the loss, such doubt must operate in favour of the insurer, as liability cannot be assumed by implication or inference against express contractual identificatio n. Therefore, although the 1 st defendant remains liable through vicarious liability, the 3 rd defendant's indemnity cannot be triggered under these circumstances. Thus, the claim against the 3 rd defendant fails, and the 3 rd defendant is not liable to indemn ify the plaintiff. Having established that a UDART motor vehicle, negligently driven by the 2 nd defendant, caused bodily injury to the plaintiff, and that the 1 st defendant bears vicarious liability for such negligent conduct, the Court now turns to the issue of appropriate relief.

Page 15 of 20 The evidence on record confirms that the plaintiff was lawfully crossing the road on a zebra crossing when he was struck. Exhibits P1 and P2 (PF3 and Medical Report) confirm that he sustained a traumatic brain injury, underwent emergency surgery to evacuat e a subdural haematoma, and subsequently underwent a second procedure to reconstruct his skull. The plaintiff continues to suffer permanent impairments, including anosmia (loss of smell), recurrent headaches , particularly in cold weather, intolerance to br ight light, and memory deficits estimated at 37%. The plaintiff pleaded TZS 350,000,000 as special damages arising from medical treatment and related expenses. As a matter of law, special damages must be specifically pleaded and strictly proved through credible documentary evidence such as receipts, invoices, or payment records. This principle is firmly established in this jurisdiction. In the case of Anthony Ngoo & Another vs Kitinda Kimaro (Civil Appeal No. 25 of 2014) [2015] TZCA 269 (25 February 2015), it was held that: “ .........., the law is settled. Special damages must be proved specifically and strictly…………………………………. Documentary evidence is vital in such claims, as demonstrated by this Court's decision in Masolete General Supplies v African Inland Church (1994) TLR 192. In the above case , the appellant claimed for special damages for loss of use. However , documentary evidence was not

Page 16 of 20 produced to prove the alleged loss. The Court made the following observation : "This was all the evidence led on behalf of the applicant company on its cement operations ; no documents were produced to back up those figures, which appear to have been plucked from the ai r. " These authorities underscore that a claimant cannot rely on estimates, assertions, or unverified figures; only properly authenticated documents will suffice. In the present case, the plaintiff tendered 22 receipts , which were admitted as Exhibit P3 to substantiate his claim for medical expenses. Upon scrutiny, only 21 receipts met the evidentiary standard required for proving special damages ; the remaining one receipt lacked verification of actual payment. The valid receipts collectively establish expenditure amounting to TZS 3,850,600. Guided by the above principles and the proven documentary evidence, the Court is satisfied that the plaintiff has strictly prov ed medical expenses to the tune of TZS 3,850,600, which is hereby awarded as special damages, payable by the 1st defendant. With respect to general damages, the plaintiff prayed for TZS 150,000,000/= for pain and suffering and loss of amenities. The general rule is that g eneral damages are intended to compensate for non - pecuniary loss, including physical pain, emotional suffering, permanent

Page 17 of 20 disability, and loss of enjoyment of life. In the case of Kinondoni Municipal Council & Another vs Oysterbay Villa Limited (Civil Appeal No. 152 of 2022) [2024] TZCA 378 (21 May 2024) , it was held that: " It is settled that general damages are such as the law will presume to be direct, natural or probable consequences of the breach. General damages generally are that sum of money which will reposition the party who has suffered loss to his previous position before the loss . See: Victoria Laundry v. Newman [1949] 2 K.B. 528 at page 539, referred by the Court in Stanbic Bank Tanzania Limited v. Abercrombie & Kent (T) Limited , Civil Appeal No. 21 of 2001, holding that the damages are intended to put the plaintiff in the same position as far as money can do so . " [Emphasis supplied] In this case, it stands uncontested that the plaintiff underwent invasive surgical procedures and continues to experience ongoing neurological and sensory impairments, resulting in a significant decline in his functional abilities and overall quality of li fe , as per Exhibit P2 . These injuries compelled him to relocate from Mbezi Makondeko to Mikocheni for safety and care, and he has suffered a loss of earning capacity, having been unable to continue working as a musician and chef. Viewed cumulatively, this evidence demonstrates substantial loss, a diminished quality of life, and enduring pain and suffering, warranting compensation. Considering the severity of the injuries, their long - term

Page 18 of 20 consequences, and the surrounding circumstances, the Court, in the proper exercise of its discretion, awards TZS 85,000,000/= as general damages, payable by the 1st defendant. The plaintiff additionally sought TZS 100,000,000/= as punitive damages. The law is clear that punitive damages are awarded only in exceptional circumstances, primarily to punish conduct that is reckless, intentional, malicious, or grossly negligent, and t o deter similar miscondu ct in the future. They are not compensatory in nature and must be proportionate and directed specifically at the party personally culpable for the wrongful act. This position was clearly articulated in the case of Peter Joseph Kilib ika & Another vs Patric Aloyce Mlingi (Civil Appeal No. 37 of 2009) [2012] TZCA 258 (28 May 2012), where it was held that: " The purpose of punitive damages is to punish the defendant for outrageous misconduct and to deter the defendant and others from similar misbehaviour in the future. We need to establish whether there was arbitrary and unconstitutional action, bad faith, fraud, malice, oppression, outrageous, violent, wanton, wicked, and reckless behaviour on the part of the appellants in order to justify the award of punitive damages." Applying this principle to the present case, the Court is satisfied that the 2 nd defendant's dangerous driving conduct, judicially confirmed by his conviction in the traffic proceedings, constitutes culpable misconduct

Page 19 of 20 capable of attracting punitive damages. However, the 1 st defendant's liability is purely vicarious, arising solely from the employment relationship, and not from any personal wrongdoing. As such, punitive damages cannot properly be imposed on the 1 st defendant. Guided further by the reasoning in Obongo v Kisumu Municipal Council (1971) EA 91 , which was cited with approval in Peter Joseph Kilibika & Another vs Patric Aloyce Mlingi (supra) , that punitive damages are not intended to enrich plaintiffs but to punish wrongdoers and deter repetition , the Court finds it appropriate that punitive damages be borne personally by the 2 nd defendant. Accordingly, the Court awards TZS 10,000,000/= as punitive damages, payable by the 2 nd defendant. The Court further grants the plaintiff the reliefs sought under items (iv) and (v) of the plaint. That said and done, i n total, therefore, the Court enters judgment against the 1 st and 2 nd defendants, and awards the following reliefs to the plaintiff:

1. The 1 st defendant is ordered to pay the plaintiff the sum of TZS 3,850,600 as s pecial damages.
2. The 1 st defendant is ordered to pay the plaintiff the sum of TZS 85 ,000,000 as g eneral damages .

Page 20 of 20 3. The 2 nd defendant is personally ordered to pay the plaintiff the sum of TZS 10,000,000 as p unitive damages. 4. Interest at the Court rate of 7% per annum on items (1) and (2) from the date of judgment until full and final settlement. 5. Costs of the suit to be borne by the 1 st and 2 nd defendants jointly and severally. It is so ordered. DATED at DAR ES SALAAM , this 19 th day of December 2025. G.V. MWAKAPEJE JUDGE Right to appeal explained. G.V. MWAKAPEJE JUDGE