Maina Holdings Limited vs Attorney General and Another (Miscellaneous Civil Application No. 000003150 of 2025) [2025] TZHC 8497 (18 December 2025)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA MISCELLANEOUS CIVIL APPLICATION NO. 000003150 OF 2025 MAINA HOLDINGS LIMITED ..............................COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS THE ATTORNEY GENERAL...............................RESPONDENT / DEFENDANT ARUSHA CITY COUNCIL............................... RESPONDENT / DEFENDANT RULING MWENDA, J The applicant sought leave of this court to file a written statement of defence out of time in Civil Case No. 32283 of 2024 in a summary suit instituted by the Respondents for alleged outstanding service levy for the financial years 2022/2023 and 2023/2024. The application is supported by an affidavit sworn by the Applicant's Head of the Accounting Department, who averred that the plaint was served upon the Applicant on 21st day of January 2025 and was thereafter forwarded to its advocate. That upon review of the pleadings, he advised them that, given the nature of the proceedings as a summary suit, leave of the Court is a prerequisite for entering appearance and defending the Page. 1

claim. The Applicant further contended that the claim is unfounded as the service levy for the impugned financial years has already been fully paid. He annexed copies of the relevant government bills and payment slips to support this position. He therefore sought leave to defend the suit on its merits so as to place before the Court, evidence demonstrating satisfaction of the alleged liability. During the hearing of this application, Ms. LESERIAN NELSON, learned counsel represented the applicant whilst Mr. NELSON KWEKA and JOSEPH BUNDALA both State Attorneys represented the respondents. Submitting in support of the application, Ms. Leserian contended that, having been served with the Respondents' plaint, the appearance and defence in a summary suit is only possible upon obtaining leave of the Court as required by law. He asserted that the Respondents' claim for unpaid service levy for the financial years 2022/2023 and 2023/2024 is disputed on material facts. That while the Respondents contended that a sum of TZS 457,510,758.49 remains outstanding, he maintained that the service levy for the impugned financial years was fully paid, relying on the bills and payment slips annexed to their affidavit. He argued that the applicant's affidavit presents a clear dispute of fact and a triable issue within the meaning of the principles articulated in authorities Page. 2

such as KAGERA TEA COMPANY LTD V TANZANIA ELECTRICITY SUPPLY COMPANY & ANOTHER (MISC. APPLICATION NO. 42 OF 2023) [2024] TZHC 9318 (6 th NOVEMBER, 2024) (TANZLII). It is against this background that he called upon the court to determine on whether the facts disclosed are sufficient to justify the grant of leave to defend the summary suit. On their side, Mr. Kweka argued that the Applicant has not raised any triable issues sufficient to justify the grant of leave to appear and defend a summary suit arising from Civil Case No. 32283 of 2024. He pointed out that the Applicant's acknowledged payment of TZS 34,140,485.47 is not in dispute and has already been factored into the Respondents' claim. It was his view that because the Applicant failed to submit her turnover, the 2nd Respondent lawfully obtained the required information from the Tanzania Revenue Authority and assessed the Service Levy accordingly. According to him, the turnover provided by the TRA shows the total Service Levy payable by the Applicant amounts to TZS 491,651,243.96, leaving an outstanding balance of TZS 457,510,758.49. Mr. Kweka maintained that the Applicant has not demonstrated any contested matters that would necessitate a hearing or further evidence. He prayed for this application to be dismissed with costs for lack of triable issues. Having carefully considered the application, the affidavits on record, the rival submissions of the learned counsels and the governing law under Order XXXV Page. 3

of the Civil Procedure Code, Cap 33 R.E 2023, this court will now determine on whether the Applicant has disclosed bona fide triable issues sufficient to justify leave to appear and defend the summary suit. Principally, Order XXXV of the CPC is designed to facilitate expeditious disposal of claims where the defendant is plainly and incontestably indebted to the plaintiff. The corollary, firmly established in authorities including KAGERA TEA COMPANY LTD V TANZANIA ELECTRICITY SUPPLY COMPANY & (SUPRA) is that leave to defend must be granted where the defence raises a plausible dispute on material facts or otherwise discloses a triable issue. The Court is not required at this stage to determine the merits of the defence. It must only be satisfied that the defence is not a sham or a mere stratagem for delay. The pleadings and affidavits in the present application reveal that the Respondents' claim is founded on an alleged outstanding service levy in the sum of TZS 457,510,758.49 for the financial years 2022/2023 and 2023/2024. Mr. Kweka contended that this figure was lawfully computed on the basis of turnover obtained from the Tanzania Revenue Authority after the Applicant's alleged failure to submit its turnover. He also acknowledges receipt of TZS 34,140,485.47, which they aver, has already been factored into the assessment. Page. 4

Conversely, Ms. Leserian asserted that the service levy for the impugned years was fully paid and they annexed bills and payment slips to substantiate this position. Although Mr. Kweka challenged the sufficiency of these payments, the Court noted that this contest of whether the levy was fully discharged and whether the assessment based on TRA turnover is accurate and binding goes to the heart of the substantive claim. Therefore, such issues cannot be conclusively determined without examination of the underlying assessment process, the Applicant's payment records and the statutory basis on which the Respondents computed the alleged outstanding sum. The Applicant's evidence of payment, if established at trial, would constitute a complete defence to the claim. The Respondents' assertion that the Applicant has failed to raise a triable issue is therefore untenable in circumstances where there is a direct factual dispute regarding the existence and extent of the alleged indebtedness. This is precisely the kind of controversy that the summary procedure is not intended to resolve summarily. Thus, the Court must avoid entering judgment in a summary suit where the defence, on its face, raises a reasonable and bona fide issue requiring adjudication. In the premises, this Court is satisfied that the Applicant has demonstrated a genuine dispute on material facts and has thereby met the threshold for grant of leave to defend under Order XXXV Rule 3(1)(b) of the CPC. This application is accordingly meritorious and the applicant is granted leave to file his defence Page. 5

within twenty-one (21) days from the date of this ruling. It is so ordered. Dated at ARUSHA this 18th of December 2025 . A. Y MWENDA JUDGE OF THE HIGH COURT Page. 6