Kimaro v Mkumbo and Another (Miscellaneous Civil Appeal No. 4 of 2000) [2000] TZHC 700 (24 November 2000)

369 THOMAS JOSEPH KIMARO v. APAISARIA MARTIN CARL MKUMBO AND OSCAR CARL MUSHI THOMAS JOSEPH KIMARO v. APAISARIA MARTIN a CARL MKUMBO AND OSCAR CARL MUSHI HIGH COURT OF TANZANIA ATMOSHI B (Munuo, J.) MISCELLANEOUS CIVIL APPEAL No. 4 OF 2000 V. Civil Practice and Procedure - Appeals - Appeal against an order allowing objection to attachment proceedings - Whether the appeal is competent Civil Practice and Procedure - Attachment proceedings — Objection to attachment n

• Whether an order allowing objection to attachment can be appealed against - Order XXI, rule 62 of the Civil Procedure Code 1966 Statutory provisions referred to:

1. Civil Procedure Code 1966, Order XXI, rule 62 and Order XXI, rule 57 Mr Jonathan, for the Respondents JUDGMENT F (Delivered 24 November 2000) Munuo, J.: The appeal is against objection of attachment proceedings under Order 21, rule 57 of the Civil Procedure Code 1966, which proceedings were allowed in Moshi District Court Miscellaneous Civil Application Number 130 of 1999. Mr Jonathan, learned advocate for the first respondent, raised a preliminary objection stating that the appeal is incompetent. That is so. Order 21, rule 62 of bars appeals against objection proceedings by stating:
2. Where a claim or objection is preferred, the party against whom an order is made may institute a suit to establish the right which he

370 TANZANIA LAW REPORTS [2002] T.L.R. A 1 claims to the property in dispute but, subject to the result of such suit, if any, the order shall be conclusive. Because the objection proceedings under Order 21, rule 57 are not appealable, the present appeal is incompetent. The appellant can, as B stipulated under Order 21, rule 62, sue for title of the property he is contesting. In view of the above, the appeal is struck out with costs. c _________ _____________ MWITAMARWA v. REPUBLIC D HIGH COURT OF TANZANIA (Mwanza District Registry} ATMUSOMA e (Mroso, J.) CRIMINAL APPEAL No. 78 OF 1998 F (From the judgment of the District Court of Tarime at Tarime, Kurwijila, Esq, in Criminal Case No. 426 of 1997) Criminal Practice and Procedure - Trial within a trial - Trial within a trial to determine admissibility of a repudiated confession - Whether trial within G a trial may be conducted by a District Court. The appellant was convicted of armed robbery in the District Court. In convicting the appellant the trial magistrate took into consideration a cautioned statement in which the appellant confessed to committing the offence. The appellant had repudiated the TT ” statement, upon which the trial magistrate conducted a trial within a trial to determine the admissibility of the statement. The appellant ’ s appeal to the High Court against his conviction was dismissed. In the course of his Judgment the judge considered whether the trial magistrate was required to conduct the trial within a trial. I