IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(COMMERCIAL DIVISION)
AT DAR ES SALAAM
MISC. COMMERCIAL APPLICATION NO. 2551 OF 2025
BETWEEN
EXIM BANK TANZANIA LIMITED …………………………………. APPLICANT
VERSUS
FELIX GAMALIEL MOSHA …………………………………………… 1ST RESPONDENT
ANNA FELIX MOSHA …………………………………………...……. 2ND RESPONDENT

Date of Last Order: 23/06/2025

RULING
KADILU, J.
This is a ruling that stems from a preliminary objection raised by the

respondent's advocate against the applicant herein. The applicant tried to

move this court under Rule 75 of the High Court (Commercial Division)

Procedure Rules, 2012, as amended. She implored the court to correct

clerical mistakes appearing on its earlier decree dated 27/7/2016 so that the

terms of the said decree conform with the judgment of the Court of the same

date.

The gist of the application is that while paragraph (d) of the judgment

shows that the respondents are jointly and severally ordered to pay an

interest of 12% percent per annum from the date of the judgment to the

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date of final payment, the corresponding paragraph of the extracted decree

erroneously indicates that the respondents are to pay the applicant an

interest of 12% percent per annum on items (c) from the date of judgment

to the date of final payment. The application met serious opposition from

the respondents who, before the hearing of the application, raised a

preliminary objection on the point of law to the effect that the application is

inordinately time-barred.

The hearing of the preliminary objection was conducted by written

submissions. The applicant was represented by Mr. Elisa Abel Msuya,

Advocate, while the respondents were represented by Dr. Dominic Daniel,

also the learned Counsel. Dr. Dominic submitted that the decree was issued

in 2016, and since then, the applicant had been making several unsuccessful

attempts to execute the decree. According to him, the decree stands

unexecuted to date due to numerous technical grounds. He elaborated that

on 5/8/2024, this court struck out the application for execution for being

accompanied by a defective decree.

The Counsel submitted further that when the application was struck

out on 5/8/2024 for being accompanied by a defective decree, the applicant

was required to apply for rectification of the decree promptly if she intended

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to re-file execution proceedings. He argued that the application for

rectification of the decree ought to have been filed within 60 days from

5/8/2024. He supported his contention by item No. 21 of Part III of the

Schedule to the Law of Limitation Act [Cap. 89, R.E. 2019]. He elaborated

that the 60 days expired on 4/10/2024, but the pending application for

rectification of the decree was filed in February, 2025 without any application

for extension of time.

Dr. Dominic contended, in addition, that when the applicant knew that

the decree was defective, that was when the application for its rectification

was supposed to be filed to afford the respondents the right to know their

exact liability under the decree to arrange their affairs accordingly. He thus

prayed for the pending application to be struck out with costs for being time-

barred.

Mr. Abel Msuya responded that the decree of this Court varies with the

terms of the judgment as pronounced, which is why this application is taken

under Rule 75 of the High Court (Commercial Division) Procedure Rules,

which provides as follows:

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 “The clerical or arithmetical mistakes in judgments, rulings, decrees,
or orders, or errors, arising therein from any accidental slip or omission may,
at any time, be corrected by the court either of its own motion or upon
request of any of the parties.”

He elaborated that an application to correct errors or mistakes on a

decree, when made by the court suo motto, or on a request by parties, is

made ‘‘at any time." Mr. Msuya argued that concerning time limitation, the

Law of Limitation Act is not applicable in the circumstances of the present

case because Rule 75 of the Commercial Court Rules provides a specific time

limit for this matter. He added that under item 20 of Part III of the Schedule

to the Law of Limitation Act, the time required for purposes of execution of

a decree is twelve years.

To him, this should be considered as a period within which a party may

apply for correction of errors or mistakes on a decree. The learned Advocate

elaborated that if the execution of the decree is limited within 12 years, no

correction can be sustained after the lapse of that period, where decrees are

open for execution. He submitted that once a matter is struck out, parties

resume their original position. He urged the court to overrule the preliminary

objection with costs for lack of merit.

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 I have keenly considered the preliminary objection, submissions by the

learned Advocates for the parties, and the authorities cited. The issue for

determination is whether the pending application for rectification of a clerical

error in the decree is time-barred or otherwise. Dr. Dominic holds the view

that Rule 75 of the Commercial Court Rules provides a general rule only, and

the exception is that where the application for execution was struck out due

to an error on a decree, the applicant is bound to apply for its rectification

within 60 days from the date of the court’s order. He supported his view by

item 21 of Part III of the Schedule to the Law of Limitation Act.

On his part, Mr. Msuya argued that the limitation period referred to by

Dr. Dominic is not applicable in the instant application because the

Commercial Court Rules already provide that applications like the present

one may be made at any time. At this juncture, it is pertinent to note the

principle of interpretation, which provides that when a specific law addresses

a matter, it generally takes precedence over a more general law on the same

subject. This means that when a specific law deals with a particular matter,

it generally overrides a general law that might also apply. The principle is

commonly referred to as “the specific prevails over the general.” The specific

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law is considered to have addressed the issue more directly, and therefore,

its provisions should be applied in that specific context.

Coming to the issue at hand, it is undisputed that all commercial cases

before this court are governed by the Commercial Court Rules except where

it is expressly provided otherwise, or where the Rules have a lacuna. Item

21 of Part III of the Schedule to the Law of Limitation Act provides that a

period of limitation for applications made under the Civil Procedure Code,

the Magistrates’ Courts Act, or other written law for which no period of

limitation is provided in the Law of Limitation Act, or any other written law,

shall be 60 days.

Since Rule 75 of the Commercial Court Rules already provides that the

clerical or arithmetical mistakes in a decree may be corrected at any time by

the court suo motu, or upon request by any of the parties, it cannot be said

that the period of limitation for the rectification of clerical errors is not

provided for in the Commercial Court Rules. For that reason, I agree with

Mr. Msuya that item 21 of Part III of the Schedule to the Law of Limitation

Act is not applicable in the impugned application.

The parties are in agreement that the basis of the contested application

is a clerical error in the judgment and decree of this court dated 27/7/2016.

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Thus, applying “the specific prevails over the general” principle, the

appropriate law governing this matter is the High Court (Commercial

Division) Procedure Rules, 2012, as amended, not the Law of Limitation Act,

which is a general law as far as time limitation in Tanzania is concerned.

For the foregoing reasons and analysis, the preliminary objection

raised by the Advocate for the respondents is hereby overruled for lack of

merit. This court finds that the pending application is well within time; hence,

it shall proceed to a hearing on the merits. Since the parties are still battling

before this court on the pending application, each party shall bear its costs

of this preliminary objection.

Order accordingly.

KADILU, M.J.,
JUDGE
30/06/2025

Ruling delivered in Chamber on the 30th day of June, 2025 in the presence
of Ms. Regina Kiumba, Advocate for the applicant, and Dr. Dominic Daniel,
Advocate for the respondents.

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KADILU, M.J.,
JUDGE
30/06/2025