Karagwe District Cooperative Union (Ltd) vs Robert Vedasto Katalyeba t/a Katalyeba Enterprises & General Supplies (Land Appeal No. 4628 of 2025) [2025] TZHC 8298 (16 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA LAND APPEAL NO. 4628 OF 2025 (Arising from Misc. Application No. 27 of 2024 District Land and Housing Tribunal for Bukoba Originating from Application No. 15 of 2021 District Land and Housing Tribunal for Bukoba) KARAGWE DISTRICT COOPERATIVE UNION (LTD) .............. APPELLANT VERSUS ROBERT VEDASTO KATALYEBA t/a KATA LYE BA ENTERPRISES & GENERAL SUPPLIES ................................... RESPONDENT JUDGMENT 2 nd and 16 th December, 2025 BANZI, J.: Karagwe District Co-operative Union Ltd, the appellant is before this Court challenging the decision of the District Land and Housing Tribunal for Bukoba (the tribunal) that dismissed Misc. Application No. 27 of 2024 for restoration of Application No. 15 of 2021 that was dismissed for want of prosecution. Briefly, the parties entered into lease agreement for the premise situated at Bukoba Municipality at the tune of Tshs.4,700,000/= per month. However, according to the appellant, the respondent failed to honour the terms of their agreement hence, filing the application seeking to be paid Page 1 of 12

Tshs.53,487,500/= as specific damages and Tshs. 100,000,000/= as general damages for breach of contract. However, the matter was dismissed with costs for want of prosecution on the reason that, the appellant had failed to appear before the tribunal for more than 90 days. Stilly eagerly to pursue his right, the appellant unsuccessfully filed Misc. Application No. 27 of 2024 seeking to set aside the dismissal order hence this appeal comprising of five grounds of appeal that:

1. THAT, the learned Chairman of the District Land and Housing Tribunal grossly erred in law for failure to accept that the case was erroneously dismissed before another chairman who never handled the case without notice on the change ofChairman to the appellant.

2. THAT, the learned Chairman of the District Land and Housing Tribunal grossly erred in law and in fact to accept that the applicant advanced sufficient reasons that was to be considered by the tribunal to set aside dismissal order and allow hearing of the main case.

3. THAT, the learned Chairman of the District Land and Housing Tribunal grossly erred in law and in fact when failed to note that allowing the application for setting aside dismissal order could not prejudice the respondent as opposed to the appellant whose rights would be curtailed by refusing the application. Page 2 of 12

4. THAT, the learned Chairman of the District Land and Housing Tribunal grossly erred in law and in fact when concluded that the case was dismissed on the reasons that the appellant failed to attend the case for 90 days and not on the reasons of the so called her absence on 08/02/2024.

5. THAT, the learned Chairman of the District Land and Housing Tribunal grossly erred in law for failure to accept that the respondent filed his counter affidavit out of time and hence barred to submit on the facts of the case save for the legal issues. When the appeal was called for hearing, Mr. Dickson Laurent, learned counsel appeared for the appellant whereas, the respondent had legal services of Mr. Peter Matete, learned counsel. Submitting on the first ground, Mr. Laurent contended that, the main case was initially assigned to Hon. Makwandi but it was later re-assigned to Hon. Masao. On 8 th February 2024, Hon. Masao dismissed the matter without giving notice to parties about re-assignment of the said case. According to Mr. Laurent, after re-assignment, it was prudent for Hon. Masao to inform the parties that the matter would continue before him. Or else, he ought to issue order of last adjournment and notice to the parties. Therefore, as the main case was before Hon. Makwandi, it was not right for the re-assigned Page 3 of 12

Chairman to dismiss the case without giving notice to the appellant that the case had been re-assigned to him. He referred to the cases of CHODAWU vs Ngorongoro Conservation Area Authority (Misc. Labour Application No. 61 of 2021) [2022] TZHC 13606 (30 September 2022) and Idd George vs Mwita Rogeko Tyenyi (Misc. Land Application No. 3 of 2020) [2020] TZHC 683 (23 April 2020) to support his argument that, where there is change of venue, parties should be notified. Turning to the second ground, he argued that, the reasons stated in the affidavit of the applicant together with exhibits constituted good cause for appellant's failure to attend. Thus, he urged this Court to consider the reasons stated in the affidavit which demonstrate good cause for defaulting appearance. In respect of the third ground, it was his submission that, granting Misc. Application No. 27 of 2024 could not have prejudiced the respondent but rather, the dismissal has affected the appellant as his whole case flopped. Concerning the fifth ground, he contended that, the counter affidavit was filed out of time and thus, the respondent was not supposed to argue about facts of the case other than issues of law. He prayed for the court to disregard the submission of the respondent save for issues of law. Concluding with the fourth ground, Mr. Laurent argued that, the tribunal erred to dismiss the application on the ground that the appellant defaulted Page 4 of 12

appearance for 90 days. According to him, though the tribunal dismissed the application believing that the appellant was not present on that date, in reality, she was present but she was confused on the change of venue as it was stated in her affidavit. Conclusively, he urged the Court to allow the appeal by quashing the decision of the tribunal and order the case to be heard inter-parties. In response, Mr. Matete on the outset opposed the appeal contending that, the complaint on the change of Chairman and failure to issue notice to the parties was raised in the application before the tribunal. However, the issue of change of venue was never complained before the tribunal. According to him, relying on the case of Mohamed Daud Chipaga vs Republic (Criminal Appeal No. 502 of 2015) [2018] TZCA 598 (14 May 2018), there is no law requiring the court to inform the parties about change of chairman or magistrate as such information is given to the parties when they are before the new chairman or magistrate. Responding to the complaint that there was a change of venue without informing the parties of such changes, Mr. Matete contended that, there was no change of venue the same place that was used by Hon. Makwandi was the same place which was used by Hon. Masao. Besides, it is not true that Page 5 of 12

the respondent was not present on the date the case was dismissed because the records reveal that, on that date, the respondent with his advocate Peter Matete were present. Submitting on the remaining grounds, Mr. Matete argued that, as the main case was dismissed for want of prosecution after the appellant had failed to attend within 90 days pursuant to regulation 15(a) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations of 2003 (the Regulations), such dismissal does not attract the remedy of restoration because the provision does not provide for such remedy. In his view, the remedy is available where the case is dismissed under regulation 1 l(l)(b) of the Regulations. In such situation, the appellant was supposed to apply for revision before the High Court. He urged the Court to dismiss the appeal with costs. In his short rejoinder, Mr. Laurent insisted that, the issue of change of venue was stated in the affidavit at paragraph 10 and 12. Also, the same was submitted at page 2 to 3 of his submission. Having considered the submissions of the learned counsel for the parties, the issue for determination is whether the appeal has merit. The records show that, before the case was re-assigned to Hon. Masao, the Page 6 of 12

matter was presided over by Hon. Makwandi. On 08/11/2023, the hearing was adjourned to 08/02/2024 because the counsel for the appellant was absent with notice that, he was before the High Court. On 08/02/2024 the respondent appeared before Hon. Masao but the appellant was absent and the reason of his absence was not given. Hon. Masao informed the respondent and his counsel, Mr. Matete about the re-assignment and that he would continue with the hearing from where it ended upon consent from the parties. Instead of responding to the issue of re-assignment, Mr. Matete prayed for the application to be dismissed under regulation 15(a) of the Regulations as the appellant had not appeared before the tribunal for more than four months. Without ado, the chairman dismissed the application with costs reasoning that, the appellant had lost interest to prosecute the case. Discontented with the dismissal order, the appellant lodged Misc. Application No. 27 of 2024 to set aside the dismissal order. Dismissing the application to set aside the dismissal order and upholding the dismissal, Hon. Makwandi stated that; "Kumbukumbu za shauri zinaonyesha kwamba Mwenyekiti Masao alizingatia kumbukumbu za shauri hili zinazoonyesha kwamba mara ya mwisho Mwombaji kufika barazani iiikuwa tarehe 17.04.2023 ambapo Mwombaji aiiwakiiishwa na wakiii Ibrahim Mswadiku. Kwa siku hiyo Page 7 of 12

shauri lilipangwa kusikilizwa tarehe zifuatazo ambazo Mwombaji hakufika. 21.06.2023; 11.09.2023; 08.11.2023. Kwa kumbukumbu hizi, ni kweii kwamba Mwombaji alikuwa hafiki Barazani kwa zaidi ya siku 90 mfululizo." From the extract above, Hon. Makwandi denied to re-admit the application because the appellant had failed to appear before the tribunal from 21/06/2023 up to 08/02/2024 when it was dismissed, which according to him, was more than 90 days consecutively. However, on the other side, Mr. Laurent contended that, it was only 08/02/2024 when the appellant failed to appear before the tribunal. Now, the issue is whether, the application was legally dismissed. Regulation 15(a) of the Regulations under which the application was dismissed at provides that; "The Tribunal may where an application is left unattended by an applicant for a period of three months- (a) dismiss the application for want of prosecution. " What I gather from the extract above is that, regulation 15(a) of the Regulations is applicable where the applicant has not attended his case for three consecutive months without notice when the matter was scheduled for hearing within such period. In that regard, in order to determine whether the application was lawfully dismissed under regulation 15(a) of Regulations, Page 8 of 12

I find it necessary to revisit the proceedings of the tribunal to find out if the appellant failed to appear before the tribunal for more than three months as contended by Mr. Matete. The records show that, from 17/04/2023 to 08/11/2023 the case was presided over by Hon. Makwandi. It is on record that, on 21/06/2023 the appellant was absent but the hearing could not continue because of absence of assessors. On 11/09/2023, though the appellant was not present, Mr. Mswadiku, her counsel was present and the case was adjourned to 08/11/2023. On that date, the appellant was absent but the Chairman adjourned the hearing stating that Mr. Mswadiku had notified the tribunal that, he was before the High Court. Then the case was adjourned to 08/02/2024 when the parties appeared before a new Chairman, Hon. Masao. Therefore, though the appellant was absent for all those days, her advocate appeared once out of three times when the case was scheduled for hearing and on one occasion, her advocate gave notice of absence. In the circumstance, considering that it is Hon. Makwandi who was adjudicating the application before it was re-assigned to Hon. Masao, and as Mr. Mswadiku was present on 11/09/2023 and notified the tribunal of his absence on 08/11/2023, it was improper for Hon. Masao to dismiss the case under regulation 15(a) of the Regulations because it was only on 08/02/2024 when Page 9 of 12

the appellant failed to attend and no notice was furnished to the tribunal of his absence. However, although the appellant did not give notice of his absence on 08/02/2024, considering that Hon. Masao was attending the case for the first time whereby, he notified the parties that, he would continue with hearing upon consent of both parties, it was improper to dismiss the application on that date. It is common practice that, as the parties are not aware of the change of presiding magistrate/chairman, when the parties appear before the new magistrate/chairman normally, the hearing cannot proceed without notifying the parties of such change. Therefore, for the interest of justice, it was prudent for Hon. Masao to inform the parties about that change and adjourn the hearing to next date while giving notice to the appellant. Had the appellant failed to appear on that date, the Chairman would have justifiable grounds to dismiss the case for want of prosecution under regulation 11(b) of the Regulations. In the circumstance, Hon. Masao erred to apply regulation 15(a) of the Regulations to dismiss the application while in one occasion counsel for the applicant had appeared and, on another occasion, his absenteeism was communicated to the tribunal. Had the Chairman found it necessary to dismiss the application, he would have Page 10 of 12

applied regulation 11(b) of the Regulations that permits dismissal of the application even on a single absence. On the other hand, Hon. Makwandi fell into the same error to find that, the application was properly dismissed under regulation 15(a). Apart from that, it was improper for Hon. Makwandi to condemn the appellant that he failed to appear before the tribunal while he was the one who was attending the application and he was aware of the absence of the appellant. That being said and done, I find the appeal with merit and I allow it by setting aside the dismissal order dated 08/02/2024. Likewise, the ruling and drawn order dated 24/01/2025 are quashed and set aside. Application No. 15 of 2021 is restored and the file is remitted to the tribunal for continuation of hearing before another Chairman. As the matter has been pending since 2021, the same should be determined as soon as practicable. In the circumstance, I make no orders as to costs. It is so ordered. I. K. BANZI JUDGE 16/12/2025 Page 11 of 12

Delivered this 16 th day of December, 2025 in the presence of Mr. Dickson Laurent, learned counsel for appellant, Hon Audax K. Vedasto, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA and in the absence of the respondent. Right of appeal duly explained. Page 12 of 12