A.A. Mpombe Mpili vs Bangili Kipengele (Civil Appeal 36 of 1992) [2000] TZHC 36 (19 June 2000)

‘ IK THE HIGH COURT OF 'TANZANIA' AT PAR ES SALAAM CIVIL APPEAL NO. 36 OF 1992 A.A. Kj'OtjjZi Kl'Iil . « APPLICANT versus BANGILI KIPEK. L E . . . . . . . RESPONDENT J U D G M E N T Chuwa, J. Chua. J . * The appellant Ally Mpombe sued the respondent Bangili Kipengele for a piece of land in Kwarusembe Primary Court Kisarawe District vide civil case No. 11/84. He was not successful* He appealed to the District Court Kisarawe. in civil appeal No, He succeeded. When he wonted to execute the decree he was - j j seci. co file a separate suit so that he could recover the costs lie ; C i incured in prosecuting his case and appeal. Kence he filed civil case No. 2k/8k in the Primary Court and was awarded shs.c:+, 230 /: t The respondent did not pay the amount immediately. As a result 1987 his house was attached and sold to recover the money that was due to the appellant. The appellant wa.s not satisfied,, Je applied in the District Court to be paid 30,4OV"-shs» being interest on the amount he was awarded at the rate of 20$ per annum plus cost of travelling to Kisarawe while he was trying to execute the decree. The District Court dismissed the claim and the appellant filed the present appeal. In dismissing the application of the appellant the learned District Magistrate stated:- •Il'ivyo kwa nndai hayo ya. malimbikizo yo kutolipwa deni mahaxama hii haikubaliani nayo kwa eababu kukuboliana na madai ya aina hiyo ni kurudia. kutoa uamuzi tena katika shauri la madai Na. 24/86 lililokwisha tangu'mwaka 1987 . ’ > Juu ya gharama za safari kwenda Kisarawe mahakaaia ya Mwanzo Mwa.rusembe na kwa Katibu Kata mworriba rufoa hakuonyesha uhakika. wa kufanya safari hizo. Flakuonyesha hata tiketi za njuli alizolipa

• kwa safari hizo: i«

The issue thot was for determination vc.e whether interest was payable on the decrecal sum and if so ot what rate. Under Order XX rule 21 (3) of the 0ivil Procedure Code District Court bas po’ -er to impose 1. interest on dscre'v'i Burns xn cases wnere it exercioes original jurisdiction subject to the rule that such interest should be within 7%. and 12%. Regarding transport coots in the absence of tickets or receipts the court should ask itself whether the decree holder hod to make the trips he cOaimed. It should be noted that rural Tanzania it is . ot s u r prialng that transporters c&y not be i uing tickets as it is the case with their counterparts in cities, The claim of the appellant, therefore, ought to hove been entertained. Both interest and transport costs wore not claimed in the Primary Court. There was therefore no tosis for bringing up the matter in the District Court by way of appeal. The procdure adapted was defective and the claimant was not given an ppporv- . dduce evidence* The appeal for that reason fails and the appellant should puxeue his rights by filing: a ci il su.it in the rictrict Court subject to the law of limitation*,= CHO'A O U . l )L t U j 28/9795 Judgment read out in court in the absence of the parties. Judgment to be typed and a certified copy be forwarded to the Mwarusembe Primary Court where the parties should be summoned so that the judgment may be read over to them. CHUA 28 / 9/95 I certify that this is a true copy of the original* arf ltuiigi DEPUTY 19/6/5000