2021 TZHC 2246

THE UNITED REPUBLIC OF TANZANIA
JUDICIARY
IN THE HIGH COURT OF TANZANIA

AT MBEYA
MISC. CIVIL APPLICATION NO. 44 OF 2020.
(From Misc. Civil Application No. 24 of 2019, in the High Court of

Tanzania, at Mbeya).
NOTIKER MGINA........................................................... APPLICANT
VERSUS
MURINGA CO. LTD (BARAKA JULIAS).....................RESPONDENT
ORDER
17 & 17. 02. 2021.
UTAMWA, J:
This application by the applicant, NOTIKER MGINA is made under
section 5(2)(c) of the Appellate Jurisdiction Act, Cap. 141 R.E 2019 and
Rule 45 (a) of the Court of Appeal Rules, 2009 (the CAT Rules). According
to the chamber summon, the applicant prayed for leave to appeal to the
Court of Appeal of Tanzania (CAT). The application is supported by his own
affidavit.
The court however, noted that, under paragraph 4 of the affidavit

supporting the application, the applicant indicated that, he was seeking for
a certificate of point of law to be considered by the CAT. This court thus,
prompted the applicant, who appeared in person and without any legal
Page 1 of 4
representation, to show cause as to why the application could not be
struck out for incompetence following the contradiction between what was
prayed in the chamber summons on one hand, and the prayer under
paragraph 4 of the affidavit. In reply, the applicant submitted that, he
knows nothing about the application since it was drafted by one
Christopher Monzo, who deals with human rights. The said Christopher is
nevertheless, not a professional lawyer.
Now, having considered the record, the brief submissions by the

applicant and the law, I am of the following settled views; that, since
section 5(2)(c) of Cap. 141 cited above is an enabling law regarding an
application for a certificate of point of law to be considered by the CAT on
appeal, and as long as rule 45(a) of the CAT Rules guides on the procedure
in applying for leave to appeal to the CAT, and as long as a leave to appeal
and a certificate of point of law are two different creatures in law and
governed by different provisions of law, I am convinced that, the
application at hand was filed with a serious misconception of law. It is
more so considering the obvious contradiction of the prayers made by the
applicant as demonstrated earlier.
Now, owing to the trend shown above, it is not clear as to which

particular prayer does the applicant intend to make before this court. Is it
for leave to appeal to the CAT, or for a certificate of point of law, or for
both? Besides, such two prayers cannot be combined in a single application
since they are absolutely distinct and they are guided by different
provisions of law as hinted previously. The application will thus, obviously
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occasion confusions to the applicant himself (as a layman), and the
respondent. It will ultimately cause injustice.
In my further view, the complications pointed herein above cannot be

saved by amending the application since even the applicant is not aware of
what he in fact, intends to pray before this court. Indeed, this is the
consequences of using non-professionals (commonly known as bush
lawyers) in conducting court proceedings. This court cannot also step into
shoes of a professional lawyer and advice on what exactly the applicant
needs under the circumstances of his case. Otherwise, the court may get
into blameworthiness in case the applicant loses his rights.
It must also be noted that, the problem in the matter at hand is not a
mere technical matter of wrong or non-citation. It is indeed, the serious
misconception of the law which may result into injustice as shown above.
Now, due to the above highlighted serious complications in the

application at hand and its legal consequences, I am convinced that, the
same cannot be saved by the principle of overriding objective. This
principle essentially requires courts to deal with cases justly, speedily and
to have regard to substantive justice; it was also underscored by the CAT
in the case of Yakobo Magoiga Kichere v. Peninah Yusuph, Civil
Appeal No. 55 of 2017, CAT at Mwanza (unreported).
Nonetheless, the principle of overriding objective cannot apply to

matters offending important procedural rules to the extent of occasioning
injustice like the application under discussion. The principle was not meant
to absolve each and every blunder committed by parties in court
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proceedings. Had it been so, all rules of procedure would have been
rendered nugatory. The principle does not thus, create a shelter for each
and every breach of the law on procedure. This is the spirit that was
recently underlined by the CAT in the case of Mondorosi Village Council
and 2 others v. Tanzania Breweries Limited and 4 others, Civil
Appeal No. 66 of 2017, CAT at Arusha (unreported). In that case, the
CAT declined to apply the principle of overriding objective amid a breach of
an important rule of procedure.
Owing to the reasons shown above, I see it just to strike out this
application for being vague, hence incompetent. I accordingly, strike it out.
Each party shall bear his own costs since the respondent does not always
appear in court. The applicant is advised that, if he still wishes, he can file
a proper application upon knowing what he in fact needs under the
circumstances of his case, of course subject to the law of limitation. It is so
ordered. \
Court; Order pronounced in the presence of the applicant, in court this

17th February, 2021.
lH.K.Utai;iwa
JUDGE
17/02/2021
Page 4 of 4

2021 TZHC 2246

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THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA

(From Misc. Civil Application No. 24 of 2019, in the High Court of

The court however, noted that, under paragraph 4 of the affidavit

Now, having considered the record, the brief submissions by the

Now, owing to the trend shown above, it is not clear as to which

In my further view, the complications pointed herein above cannot be

Now, due to the above highlighted serious complications in the

Nonetheless, the principle of overriding objective cannot apply to

Court; Order pronounced in the presence of the applicant, in court this

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