Capital Radio and Others vs Catherine Henry Malila (Misc. Civil Application No. 21839 of 2025) [2025] TZHC 8590 (18 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT PAR ES SALAAM MISC. CIVIL APPLICATION NO. 21839 OF 2025 [Arising from Taxation No. 12319 of 2024] CAPITAL RADIO .................................................................... 1 st APPLICANT SOFIA RAJABU ........................................... 2 nd APPLICANT INDUSTRIAL PRODUCTION PROMOTION [IPP] MEDIA ....... 3 RD APPLICANT WILBERT DEOGRATIAS MASONA ........................................ 4 th APPLICANT VERSUS CATHERINE HENRY MALILA ................................................... RESPONDENT RULING Date of Last Order: 19.11.2025 Date of Ruling: 18.12.2025 NGUNYALE, J. The applicants filed the present Chamber Summons seeking, inter alia, an order for extension of time to lodge a Civil Reference against the decision of the Taxing Officer in Taxation Cause No. 12319 of 2024 delivered on 19 th September, 2024. The application is supported by an affidavit sworn by the applicants' counsel. i

Upon being served, the respondent filed a Counter Affidavit in opposition thereto and thereafter raised preliminary objections on points of law on the following grounds:

1. That application is incompetent and bad in law for contravening the mandatory requirement of Order XXIII (2) (b), (3) of the Civil Procedure Code Cap 33 R.E 2023 for being refiled without an order of the court for leave to refile.
2. That the application is incompetent for being supported by affidavit of applicants' counsel which had no power to depone for facts known by the applicants hence defective verification clause contrary to Order XIX rule 3 of the Civil Procedure Code Cap 33 of 1966 RE. 2023
3. That, the application is bad in law for contravening the mandatory provision of section 84A (1) of the interpretation of laws Act, [CAP 1, R.E 2023] which requires the pleading to be in Kiswahili language.
4. That, the application is bad in law for contravening the mandatory provision of section 84A (5) of the interpretation of laws Act, Cap 1, The interpretation of laws (use of English language in courts) (circumstances and conditions) Rules, 2

2022 which require the pleading filed in English version to have a corresponding translation of the Swahili language. The preliminary objections are now before the Court for determination, on consensus the objections were heard by way of written submissions whereby the applicants' submissions were filed by Mr. Kassim Mmbaga Nyangarika, advocate while the respondent's submissions were filed by the respondent in person. This Court shall now proceed to determine the said objections in seriatim, commencing with the first objection. Submitting in support of the first ground of objection on whether Order XXIII Rule l(2)(b) and (3) of the Civil Procedure Code, (Cap 33 R.E 2023), (hereinafter named the CPC) was contravened, it was the respondent's submission that the applicants had previously filed an application registered as Civil Reference No. 465 of 2025, which was withdrawn without leave to refile. The respondent contended that the present application is therefore incompetent. It was submitted that while a party has the liberty to withdraw a suit or application, refiling requires express leave of the Court under Order XXIII Rule 1(2). Withdrawal without such leave, as provided under Rule

1(3), bars the party from instituting a fresh suit or application on the same subject matter. In support of this position, the respondent relied on the decisions in: CRDB Bank Pic and Leonard Mususa, Receiver Manager of Morogoro Canvas Mills (1998) Ltd v. Mohamed Abdallah & Another, Commercial Cause No. 277 of 2015 and Halima Hamisi Rajabu Budda & 4 Others v. Abubakari Hamisi (Administrator of the Estate of the Late Hamisi Rajabu Budda), Misc. Civil Application No. 34 of 2022, where the Court insisted that leave to refile after withdrawal is fundamental. The respondent also referred to the court record of 26 th June 2025, which showed that the previous application was marked withdrawn with no order as to costs, and that no leave to refile was granted. It was submitted that the current application, having been filed after withdrawal without leave, is statutorily barred, and the Court was urged to uphold the objection and dismiss the application with costs. In reply to the submissions made by the respondent, Mr. Nyangarika, for the applicants submitted that the objection has no merit and ought to be dismissed with costs on the grounds that Civil Reference No. 465 of 2025 was withdrawn with leave of the Court due to formal defects, and 4

not dismissed on merit. He also contended that the provisions of Order XXIII Rule 1(1), (2) and (3) relate to suits, not to applications, and therefore do not apply to the present application. Further, he argued that there is no requirement for leave to file a fresh application following withdrawal of a previous application, especially where the former application was not adjudicated on its merits. He made reliance on the case of Blue Star Service Station v. Jackson Musseti t/a Musset Enterprises [1999] TLR 80 (CA) to support the proposition that a fresh application is permissible under such circumstances. He insisted that the allegation that withdrawal without an order to refile bars a fresh application is a misconception of the law, and that the present application is competent and properly filed thus invited the court to find the first objection with no merit and dismiss it with costs. As the first objection reads, the court is called upon to determine the competence of the application subject to the requirement under Order XXIII Rule 1(l)-(3) of the CPC. For clarity it is pertinent to reproduce the Order as I hereunder do;

"1- (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied- (a) that a suit must fail by reason of some formal defect; or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in subruie (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. " From the above position, it is clear that Order XXIII Rule 1 of the CPC gives a party the right to withdraw a suit or abandon part of his claim. The Rule, however, expressly sets a condition that where a party intends to refile, such leave must be sought from the Court and granted expressly. Failure to obtain such leave bars the party from instituting a fresh suit or application on the same subject matter. This is the position of this Court in a number of cases including; the cases of Halima Hamisi Rajabu Budda (supra), CRDB Bank Pic and Leonard Mususa (supra) and Irene Richard Suma v. Erick Richard Suma & 6

4 Others (Misc. Civil Application No. 548 of 2023) [2023] TZHC 22538 to mention a few. While the provisions of Order XXIII specifically refer to "suits," the Court observes that the term equally applies to applications. This is because there are no other provisions in the CPC specifically regulating withdrawal of applications, and the principle of finality or prevention of abuse of court process and ensuring that matters in litigation come to an end, extends to all proceedings before the Court. A narrow interpretation that restricts the rule to suits alone would defeat the purpose of the law and allow repeated and potentially endless refiling of applications, thereby abusing the Court process. The Applicants' reliance on Blue Star Service Station (supra), is misplaced as the said case concerns the competence of an application for stay of execution pending appeal which was dismissed for failure to annex the decree or disclose its terms, whereas the present matter concerns a statutory bar against refiling under Order XXIII Rule 1(3) of the Civil Procedure Code following withdrawal without leave. In the present case, the previous application filed by the Applicants, Civil Reference No. 465 of 2025, was withdrawn with no order to refile. The court record shows that no leave to refile was granted. As per annexure

"I" to the affidavit in support of the application; the Court proceedings dated 26 th June 2025 reads: " Mr Nyangarika, advocate: I requested a correction on the matter; instead of reading 'reference/ it read 'application. ' COURT: It appears that the application challenges the bill of costs that was previously subject to challenge before Mbwagwa J. Mr Nyangarika, advocate: Having been notified of the confusion in the application. I pray to withdraw the application with leave to refile. Ms Catherine: I leave it to the court to decide. I wish the application could have been dismissed. ORDER: The application is marked withdrawn with no order as to costs. Order accordingly. E. Y Mkwizu Judge 26/6/2025" Thus, guided by the law and looking at the Court order above, it is with no hesitation that under Order XXIII Rule 1(3) CPC, the Applicants are precluded from filing a fresh application as leave to refile was not granted, hence the present application is incompetent. Having found merit in the first ground of objection, there is no need to canvass the remaining grounds as this alone sufficiently disposes the entire application.

In the circumstances, the first preliminary objection is upheld. The present application is incompetent and cannot be entertained. The application is hereby struck out with costs. It is so ordered. Dated at Dar es Salaam this 18 th day of December, 2025. Ruling delivered this 18 th day December, 2025 in presence of the 9