Benedict Njau vs Kassim Ally Maonya (Civil Appeal 32 of 1999) [1999] TZHC 28 (3 December 1999)

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM PC. CIVIL APPEAL NO. 32/99 BENEDICT N J A U .... . ........ ... APPELLANT Versus KAS3IM ALLY M A O N Y A ........... » RESP ONDENT J U D G E M E N T I HEM A .J? The appellant Benedict Njau has appealed to this court challenging the decision of the District Court in Civil Appeal No. 1/1999 He was the successful party in the original Primary Court Civil Case No. 9/98 at Mikongeni Primary Court Morogoro Municipality. The dispute the subject of the appeal is a piece of land which the appellant lays claim on out of the clan land of the respondent. Appellant claims to have been given the piece of land by the respondent’s father and the respondent, while admitting sc, contends that the appellant has extended his original offer contrary to what was intended and given* The Primary Court of Mikongeni uhpheld the appellant's claim and on appeal the District Court of Morcgoro in Civil Appeal No. 1/1999 overruled the decision of the Primary Court, hence this appeal. When I heard the appeal on 13/7/1999 I took the liberty to direct the District Court to make further findings on the disputed piece of land so as to establish the dermacations on the area in dispute. It is on record that Hon. R.S. Ruhumbika, 3RM made a site visit on 25/5/99 with the parties and a sketch map was drawn. When hearing resumed on "26.10.99 thS sketch map was contested by the respondent, despite his visit to the site on 25.8/99. In view of the conflicting testimony of the case under reference I am minded that justice would be done and seen to be done if this case is remitted back to the Mikongeni Primary Court for retrial,

2 by another Primary Court Magistrate. I make no order as to costs in this appeal and the costs below. It is so ordered. Right of Appeal explained. a / . i , •' / ' \ - '■'•• ' V S. IHEMA JUDGE 3/12/1999,

0 S. IHEMA JUDGE 3/12/99