THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

MBEYA DISTRICT REGISTRY

AT MBEYA

MISC. LAND APPLICATION NO. 94 OF 2019

(Arising from Misc. Land Application Number 114 of 2016 of the High Court of
Tanzania, Land Revision No.2 of 2016, originating frim the Ruling in Miscl Land
No.41 of 2016. Originatingfrom the decision in land Application No.31 of 2016 all
of the District Land and Housing Tribunal of Mbey a)

KILABU CHA NSOMBE GROUP............................. APPLICANT

VERSUS

REGISTERED TRUSTEE OF CCM.............. 1st RESPONDENT

HIGHLAND AUCTION MART MBEYA.............. 2nd RESPONDENT

RULING
Date of last Order: 16.10.2020
Date of Ruling: 20.10. 2020
Before: Dr. Mambi, J.
This Ruling emanates from the application filled by the
applicant (KILABU CHA NSOMBE GROUP) for leave to appeal to the
Court of Appeal. The applicant filed a chamber summons
application under Section 5 (1) of the Appelate Jurisdiction Act, Cap
141 [R.E2019] and Section 47 (1) of the Land Dispute Courts Act,
Cap 216 [RE. E. 2019]. The applicants prays to this court to grant
leave to enable themto appeal to the Court of Appeal against the
Rulingmade by this Court under Hon.Judge Levira as she then was.
During hearing, the applicant appeard unrepresented. The
respondents only apeardd once on the 8th of May when the matter
vwas scheduled for mention. The applicant prayed to argue the
matter by way of written submissions and they did so as
ascheluded. The respondents did not file any written submission.
However, surprisingly the applicants filed submission for rejoinder
as if the respondents filed their submission while they did not. It
appears the summon were served to the respondents on 13th March
2020 and 29th April 2020 in Mbeya but their lawyers were not
aware as they have never appeared.The applicants paryed the
matter to proceed since the respondents have never respondended.
This court procedded to determine the matter basing on the
applicants’ submissions as paryed.

The applicant in their submission briefly submitted that the

applicant have been aggrieved by the decision made by this Court
under Hon.Judge Levira as she then was that is why they are
intending to appeal. They argued that the Judge made her decision
without according them with right to be haerd. The applicants
further submitted that it appers from the begining of the matter at
the Trial Tribunal there were some people who they are believed to
be CCM Leaders from Ituha Branch had personal interest on the
land in dispute. They argued that this court was wrong in
upholding the eviction decision of the Trial Tribunal.
I have keenly perused the documents and considered the
submissions made by applicant to find out whether this court has
been properly moved and whether this application has merit or not.

Having gone through the application, I find the main issue to be

deermined by this court is whether the applicants have advanced
clear points of law and grounds to warrant this court to grant leave
to appeal to the Court of Appeal. In other words this court needs to
determine as to whether there are points of law that has been
raised by the applicant to enable this court to grantleave for them to
appeal to the court of appeal. It is the settled position of the law
that for the court to consider an application for leave to appeal to
the court of appeal, there must be point/s of law to be determined.
It is also trait law that grant of leave or certificate to appeal to the
Court of Appeal is a discretionary to the court.

The law on this point is very clear on what should court consider
before granting leave for an application for leave or certificate to
appeal to the Court of Appeal of Tanzania against the judgment and
Orders given by this Court as I alluded above. It is clear that the
Ruling which is intended to be appealed was made by this court in
the exercise of its appellate jurisdiction. This means that the
applicant was right to file an application underSection 5 (1) (c) of
the Appellate Jurisdiction Act, Cap. 141 [R. E. 2002]. However,
before the High court grant certificate to apela to the court of law
the applicant must clearly show the points of laws that were not
determined by the Judgeme who made the decision against him.
The requirement for showing point/points of law for any party
seeking for leave to High Court to appeal to court of Appeal is
provided under the Appellate Jurisdiction Act, Cap 141 [R.E.2002].
This is under the section 5 (2) (c) of the Appellate Jurisdiction Act,
Cap 141 [R.E.2002] which provides that:

“no appeal shall lie against any decision or order of the High
Court in any proceedings under Head (c) of Part III of the
Magistrates' Courts Act unless the High Court certifies that a
point of law is involved in the decision or order”

This was also underscored by the Court of Apeal in NELI MANASE

FOYA VS DAMIAN MLINGA, MISC.APPEAL NO. 19 of 1999 at

pages 2 and 3.

The question is, did the applicants indicate any point of law as
required by the law?. I have gone through the affidavit and
submission by the applicant nd found that the applicant have just
mentioned that they were denied right to be haerd. However the
applicants did not explain how were they denied right to be haerd
apart from just concetating on what they believed to have
transpered at the Trial Tribunal (The District Landa and Housing
Tribunal for Mbeya in Aplication No.31 of 2006). Instead of focusing
on indicating points of law from the decision of this caourt in Land
Revision No.2 of 2016 the aplicants dwelt much on complaining
that there were some people who had personal interest on the
disputed land.
I have perused the ruling made by the Judge and stisfy myself that
the judge was right in her decision. If one look at the Ruling made
by the Judge at pages 5, 6, 7, 8 and 9 it is clear that the applicants
have not showed the grounds or the so called point of law pointed
at out on their affidavit and submission. Indeed the judge properly
made the revision order and she found that there was no any
pending experte Judgment in Application No.31 of 2006.

This court has in numerous decisions held that certificate or leaveto

appeal to the Court of Appeal can only be granted where the
intended appeal stands reasonable chances of success and the
applicant has clearly pointed out the points of law in his affidavit. I
am also aware that leave to appeal to the Court of Appeal is not
automatic rather it is discretionary and depend on whther there
clear points of law (raised by the applicant) to be determined by the
Court of Appeal. Looking at the affidavit by the applicants, I find
that the applicants have not established that there are points of law
that need to be determined by the Court of Appeal.

Indeed the provisons of the law are very clear on what should court
consider before giving or granting leave or certificate for an
application to appeal to the Court of Appeal of Tanzania against the
judgment and Orders given by this Court. This is founded under the
section 5 (2) (c) of the Appellate Jurisdiction Act, Cap 141
[R.E.2002]. That provision provides that:

“no appeal shall lie against any decision or order of the High
Court in any proceedings under Head (c) of Part III of the
 Magistrates' Courts Act unless the High Court certifies that a
point of law is involved in the decision or order”

Under this provision of the law, the High Court is required to to be

satisfied itself that point/s of law are involve before an appeal could
be entertained by the Court of Appeal. I have perused the judgment
of this Court and the application filled by the applicants, but I don’t
see any point of law to justify me and this court to grant leave for
the applicants to appeal to the Court of Appeal as there is no any
pint of law indicated by the applicant. The applicants have not
indicated any point of law and sufficient reasons other than wasting
time. The applicants have not raised any point of law on the so
called issues they have raised in their affidavit. It should also be
noted that leave to appeal to the Court of Appeal is not automatic,
one must show the points of law to be determined and must adduce
clear groundsof the intended appeal.

In light of what I have observed and reasoned, that my hands are

tied up by the decisions of my previous Judges, I don’t see any need
for further discussing this application rather than dismissing it. In
my considered view, the intended appeal stands no reasonable
chances of success as both isues raised by the applicants were
properly determined by the Hon. Judge. I am of the consider view
that entertaining this kind of application is wastage of the time of
this court and both parties. In all the circumstances, I am satisfied
that the case (application) has no meit since the applicants failed to
point outs any point of la to warnt this court to gove certificate or
leave to appeal to the Court of Appeal. I am of the settled view that
6
the application at this court was rightly determined and there is
nothing can be regared as point of law to justify the intended appeal
to the court of Appeal. In the result, I dismiss the application in its
entirety.Given the circumstance of this case, I make no orders as to
costs. It is so ordered.

Dr. A. J.
Judge
20/10/2020

7
Date: 21/10/2020

Coram: D. B. Luwungo, Ag. DR.

Applicant: Present

1st Respondent:

2nd Respondent: Absent

B/C: Gaudensia

Court: Ruling delivered today on this 21st day of October,

2020 in chamber, in the presence of the applicant
in person only.

D. G. Luwungo
Ag. Deputy Registrary
21/10/2020