Johnson Leonard Mahururu vs Commissioner For Lands & Others (Civil Application No. 619/17 of 2023) [2026] TZCA 607 (25 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: LILA. J.A., RUMANYIKA, 3.A. And MANSOOR, J.A .) CIVIL APPLICATION NO. 619/17 OF 2023 JOHNSON LEONARD M AH U R U R U ....................................................APPLICANT VERSUS COMMISSIONER FOR LANDS.......................... .. ...................... 1 st RESPONDENT PERMANENT SECRETARY MINISTRY OF LANDS, HOUSING & HUMAN SETTLEMENT DEVELOPMENT.................................................. 2 nd RESPONDENT THE ATTORNEY G E N E R A L ......................... . ............................ 3 rd RESPONDENT (Application for striking out the Notice of Appeal arising out of the Ruling and Order of the High Court (Land Division) at Dar es Salaam) (Hemed, J.) Dated the 22nd day of February, 2023 in Misc. Land Application No. 365 of 2022 RULING OF THE COURT 8th December 2025 & 25th May 2026 MANSOOR, 3.A.: The applicant filed a notice of motion under rules 48 and 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), requesting for striking out the notice of appeal on the ground that some essential steps in pursuit of the intended appeal have not been taken. The motion is supported by the affidavit of the applicant in which he stated that, the respondents herein, in Misc. Land Application No. 365 of 2022, before the i

High Court, Land Division, had applied for extension of time within which to file the notice of appeal, intending to appeal against the exparte judgement and decree of the High Court in Land Case No. 28 of 2018, delivered on 30th August 2021. In the exparte judgement, the High Court had declared the revocation of the right of occupancy over Plot No. 2242, Block L, Kilongawima, Mbezi Beach, Dar es Salaam, unlawful. The respondents were granted the extension of 14 days from 22n d February 2023, to file the notice of appeal to challenge the said exparte judgement. The respondents thus, fiied the notice of appeal on 3rd March 2023. They also iodged a letter to the Deputy Registrar of the High Court requesting for copies of proceedings on 17th March 2023. The applicant contended that, the respondents never made any follow up to the Deputy Registrar after lodging the first letter on 17th March 2023. That, the respondents did not write a reminder letter to the Deputy Registrar of the High Court after the 90 days had expired, from the day they lodged the first letter. That, the 90 days had expired on 15th June 2023, and the further 14 days for making the follow up expired on 29th June 2023. The stance taken by the applicant is that, the respondents failed to take the necessary steps in pursuit of the appeal led to the present application for the striking out of the notice of appeal.

The application was vehemently resisted by the respondents in the reply affidavit sworn by Mr. Gallus Lupogo, the learned State Attorney from the Office of the Solicitor General. He stated that, the first letter to the Deputy Registrar was lodged on 7th June 2022, and the letter lodged on 17th March 2023 was the second one, which was lodged after the delivery of the ruling of the High Court in Misc. Land Application No. 365 of 2022. They also stated in the affidavit that, the rules do not prescribe the modality of making follow up to the Deputy Registrar for copies of proceedings or documents, and that, Mr. Lupogo made physical follow ups, and went physically to the Deputy Registrar's office for collection of the documents. That, on 20th June 2023, the officer of the Court responsible for preparation and compilation of documents for record of appeal, one Ms. Doris Buchendwe, informed Mr. Lupogo that, the documents were not ready for collection. That, Mr. Lupogo made physical follow ups at the office of the Deputy Registrar in July 2023 and August 2023, but did not find Ms. Buchendwe at the office for various reasons. The fourth time, that is in the midst of August 2023, Mr. Lupogo made another physical follow up and met Ms. Buchwende, who again informed him that, the documents were not ready. That, to date they have not been able to file the memorandum and record of appeal as they are yet to be supplied with the records by the High Court. The respondents therefore 3

averred that, they have been making vigorous physical follow ups at the office of the Deputy Registrar of the High Court but the efforts did not bear any fruits, thus, the notice of appeal cannot be struck out for reasons of failure to take steps in pursuit of the appeal. At the hearing, the applicant had the services of Mr. Barnabas Luguwa, learned advocate who appeared virtually from Dar es Salaam, who simply adopted the written submissions in support of the application. On their part, the respondents had the services of Ms. Jacqueline Kinyasi, and Mr. Francis Wisdom, both, learned State Attorneys, who also appeared virtually from Dar es Salaam. In his submissions, Mr. Luguwa made reference to Rule 90 (5) of the Rules, that, the Deputy Registrar was required to supply the documents to the respondents within 90 days from the request, and the 90 days expired on 15th June 2023. That, after the expiry of the 90 days, the respondents were required to write a reminder letter within 14 days of the expiry of the 90 days but did not do so. He supported his arguments on the requirements of filing a reminder letter within 14 days after the expiry of the initial 90 days by referring to the case of Daudi Robert Mapuga & Others versus Tanzania Hotels Investment Limited (Civil Application no. 462 of 2018 [2021] TZCA 11 (11 February 2021).

Regarding the physical follow ups made by Mr. Lupogo as stated in the reply affidavit and the affidavit of Ms. Buchwende, the Registry Officer of the Court who supported Mr. Lupogo's depositions, Mr. Luguwa argued that, rule 90 (5) of the Rules is categorical that, the duty to furnish documents rests on the Deputy Registrar, and proof that Mr. Lupogo made any physical follow up should have been supported by the affidavit of the Deputy Registrar, not otherwise. He argues further that, in any case, rule 90(5) and the holding in Daudi's case (supra), the applicant was required to write a formal reminder letter to the Deputy Registrar notifying that the 90 days have lapsed. This was not done, hence a violation of the laid down procedure. Mr. Luguwa refers to the case of Monica Makungu versus Director of Education Department, Archdiocese of Mwanza, Civil Application No. 31 of 2021 [2022] TZCA 49 (21 February 2021), to support his contentions. He argued further that, communication with the Court must always be formal and must be documented as emphasised in the case of LRM Investment Company Limited & Others versus Diamond Trust Bank Limited, Civil Appeal No. I l l of 2019 [2022] TZCA 315 (2 June 2022), that, " o fficia l com m unication is that which is form a! and m ust be docum ented not otherw ise."

Mr. Luguwa, thus, prayed for the notice of appeal to be struck out for failure of the respondents to take essential steps in pursuit of the appeal. In response, Ms. Kinyasi adopted the contents of the affidavits of Mr. Lupogo and that of Ms. Buchwende and made reference to the cases of Cable & Satellite Consultancy Limited versus Mwananchi Group Limited, Civil Application No. 631/01 of 2022 [2022] TZCA 881 (12 September 2024) and the case of Kaemba Katumbu versus Shule ya Sekondari Mwilamvya, Civil Application No. 523 of 2020 [2021] TZCA 312 (16 July 2021), on the interpretation of rule 90 (5) of the Rules, in that, the rule did not provide for time limit for making follow ups with the Registrar, and that, one can make physical follow up with the Registrar, and it is not necessary to write a formal reminder letter. Ms. Kinyasi thus argued that, they made several physical follow ups with the office of the Deputy Registrar and they have always been attended to by Ms. Buchendwe, the officer of the Court, who gave the affidavit to support the fact that Mr. Lupogo visited the office of the Deputy Registrar for physical follow ups of the documents. Ms. Kinyasi argued that, the respondents were not home and dry but physically made follow ups with the Deputy Registrar. That, despite the efforts made, to date, they have not been supplied with the documents, and have not been able to lodge

the appeal. She urged the Court to dismiss the application with costs as the respondents have actively and persistently been making physical follow ups at the offices of the Deputy Registrar of the High Court for collection of the documents. In his brief rejoinder, Mr. Luguwa insisted that, even if the physical follow ups are agreed to be the applicable mode of making follow ups, still the respondents made follow ups with the court clerk and this cannot be taken as a follow up with the Deputy Registrar. He insisted further that, the respondents failed to take essential steps to pursue the appeal as required under rule 90 (5) of the Rules and that the notice of appeal ought to be struck out, with costs. We have carefully considered the application and the affidavits in support thereof, the affidavits in reply and the submissions by the counsel, the authorities cited, and the law. The application before us is one for striking out a notice of appeal, the relevant provision is rule 89 (2) of the Rules which states that: 89(2): Subject to the provisions o f sub rule (1), a respondent or other person on whom a notice o f appeal has been served m ay a t any tim e, either before or after the institution o f the appeal ' apply to the Court to strike out the notice o r the appeal, as the case m ay be, on the ground that no appeal lie s or that som e

essential step in the proceedings has not been taken or has not been taken within the prescribed time. It is clear that rule 89(2) allows the respondent in an intended appeal to apply to the Court to strike out the notice of appeal or appeal on three grounds:

1. No appeal lies;
2. Som e essentia! steps in the proceedings have not been taken, and three
3. The essential steps have not been taken within the prescribed tim e; The complaints by the applicant falls under categories two and three of rule 89 (2), that, the respondents did not take some essential steps in pursuit of the appeal, in that, they did not write a reminder letter to the Deputy Registrar at all, and that, they did not make any follow up within 14 days from the expiry of the 90 days from the date they requested for copies of proceedings. Rule 90(5) of the Rules places an obligation to the Registrar to furnish all the proceedings to the respondents or an intended appellant who have already filed the Notice of Appeal and requested for copies of proceedings within 90 days from the date of the request. Under the rule, the intended appellant is required to take steps to collect the documents

upon being informed by the Registrar, or to take steps to collect the documents within fourteen days after the expiry of the ninety days, if not notified by the Registrar: the rule provides: 9 0 (5 ): Subject to the provisions o f subrule (1), the R egistrar sh a ll ensure that a copy o f the proceedings is ready fo r delivery w ithin ninety (90) days from the date the appellant requested fo r such copy and the appellant sh a ll take steps to collect copy upon being inform ed by the R egistrar to do so, o r w ithin fourteen (14) days after the expiry o f the ninety (90) days. The preceding rule places an obligation to the Registrar to make sure that the documents are ready for delivery to the appellant within 90 days from the request, and also to inform the appellant that the documents are ready for collection. The rule also places an obligation to the intended appellant, respondents in the present matter, to collect the documents upon being informed by the Registrar, or to take steps to collect the docum ents from the R egistrar w ithin fourteen days after the expiry o f the ninety days, if not informed by the Registrar. It is evident from the records that the documents were not ready within ninety days from the date they were requested by the respondents, and the Registrar never informed the respondents that the documents 9

were ready for collection. Now, what remained the obligation of the respondents under such situation, is as stated in the last part of rule 90(5) of the rules, which required the respondents to take steps to collect the documents from the Registrar within fourteen days from the expiry of the ninety days. What are those steps which ought to have been taken by the respondents within 14 days from the expiry of the ninety days, is the centre of controversy in the present application. While Mr. Luguwa argued that the ninety (90) days expired on 15th June 2023. That, after the expiry of the 90 days, the respondents were required to write a reminder letter within 14 days of the expiry of the 90 days. That, the respondents did not write any reminder letter, thus, they failed to comply with the provisions of Rule 90 (5) of the Rules. Ms. Kinyasi, on the other hand, did not dispute that, they did not write a reminder letter within 14 days after the expiry of the ninety days, but contended that, they made physical follow ups. That, the respondents lodged the notice of appeal on 3rd March 2023, and on the same date, they requested for a copy of proceedings from the Registrar, and the letter was served to the Deputy Registrar of the High Court on 17th March 2023. Thus, 90 days reckoned from 17th March 2023 expired on 15th June 2023. That, up to 15th June 2023, the documents were not ready and the Deputy Registrar never informed them to collect the documents. Thus, on 20th 10

June 2023, Mr. Lupogo made physical follow up to the office of the High Court, Land Division, Dar es Salaam. He met one Ms. Doris Buchendwe, the Registry Officer of the High Court, Land Division, whose duties is to mobilize documents necessary for preparation of appeal. Ms. Buchendwe swore an affidavit to confirm that she attended Mr. Lupogo on 20th June 2023 at the Registry and had informed him that the documents were not ready for collection. Mr. Luguwa insists on a formal written reminder letter. Much as rule 90 (5) did not provide for a requirement of a written reminder letter as what is required is to take steps to collect the documents from the Registrar within fourteen days from the expiry of the ninety days, but again, in the case of Cable and Satellite (supra), we clarified that a formal reminder letter is not the only mode of making follow ups. In interpreting the provisions of rule 90 (5), we made it clear that, physical follow ups also suffice. We stated at page 13 and 14 of the Ruling that: "Second step; where the appellant receives no notification, he has to approach the R egistrar within 14 days after the lapse o f 90 days so as to be supplied with the requested docum ents. We are saying so because the preceding words in rule 90(5) o f the Rules en tail the action o f going physically to the R egistrar to collect the docum ents once notified. I f 90 days lapses w ithout notification from the ii

Registrar, the intending appellant has to take action by going to the R egistrar within the 14 days after the expiry o f 90 days to collect the docum ents (Emphasis ours). In Cable & Satellite (supra), we also subscribed to the position stated in Kaemba Katumbu (supra) that, there is no time prescribed under the rules for lodging a reminder letter with the Registrar, but the reminder letter as well as the physical follow ups must be made within a reasonable period, that is within 14 days from the lapse of the ninety (90) days prescribed under Rule 90 (5) of the Rules. We thus stated at page 16 of the Ruling: "As regards the case o f K aem ba K atu m b u , we are aware that the case ruled out that , there is no tim e lim it w ithin which to w rite a rem inder letter, to which we s till m aintain the said position. Nevertheless, it is expected that, in case o f m aking a physical follow - up and by w riting a rem inder letter, then the action should be taken within reasonable tim e ...... , that is, w ithin 14 days after w aiting fo r 90 days w ithout notification from the Registrar . " Therefore, from the interpretation of rule 90(5) made in Cable & Satellite (supra), physical follow ups for collection of documents from the Registrar, if made within 14 days after the expiry of the initial 90 days, is an acceptable step envisaged in Rule 90 (5) of the Rules. It is stated in 12

the affidavit of Mr. Lupogo that, he visited the Registry of the High Court on 20th June 2023, he was attended by the Registry Officer Ms. Buchendwe who informed him that the documents were not ready for collection. The issue of contention is whether the respondents made any physical follow ups with the Registrar as required under rule 90(5) of the Rules. The complaint by Mr. Luguwa is the requirement of taking steps before the Registrar as stated in rule 90 (5), and that the Registry Officer, Ms. Buchendwe is not the Registrar. The arguments of Mr. Luguwa is the correct position under rule 90 (5) which requires that steps to either remind or to collect the documents must be taken before the Registrar. It is the Registrar who is mentioned in rule 90 (5) and not the clerk of the court. Ms. Buchendwe is the Registry Officer working in the office of the Registrar as the support staff who has a special duty of preparing and compiling the record of appeal for purposes of appeals to the Court. Making physical follow-ups before a court clerk is not a compliance of the requirements of rule 90(5) of the Rules. Mr. Lupogo should and ought to have made physical follow ups with the Registrar or Deputy Registrar and bring proof that indeed he took such steps before the Registrar and that would have amounted to taking steps towards complying with the provisions of Rule 90 (5). Proof that such step was taken should have come from the Registrar. The affidavit from the officer of the Court who 13

works in the Registry cannot be proof that Mr Lupogo made physical follow-ups with the Registrar. It could be proof that he made physical follow-ups with the court clerk but that is not what is required under Rule 90(5) of the Rules. We therefore agree with the arguments advanced by Mr Luguwa that there was no proof at all that the respondents made physical follow ups with the Registrar within 14 days from the expiry of the initial 90 days. In this case, there is no doubt that the respondents did not comply with the provision of Rule 90 (5) of the Rules. We find that, there is no proof of any physical follow ups made by Mr. Lupogo with the Registrar, neither did he write a formal reminder letter within the fourteen (14) days of the expiry of the first days as stated in Cable and Satellite as well as in Sebastian Raphael vs AIRTEL Tanzania Limited (Civil Application no. 776/01 of 2022) [2024] TZCA 506 (28 June 2024) that, when a party makes several physical follow ups at the Deputy Registrar, it is regarded as taking steps in pursuing the appeal, and a compliance of rule 90 (5) of the Rules. The question then is what becomes the fate of the notice of appeal already lodged. In our view, and as previously been held on different occasions such as in Cable & Satellite (supra), Kaemba Katumbi 14

(supra) and Sebastian Raphael (supra), the respondents have not complied with the provision of Rule 90 (5) of the Rules and the notice of appeal so lodged falls the prey to be struck out pursuant to the provisions of Rule 89(2) of the Rules. Consequently, the application is meritorious, we proceed to order the striking out of the notice of appeal, with no orders as to costs. DATED at DODOMA this 21st day of May, 2026. S. A. LILA JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered virtually, this 25th day of May, 2026 in the presence of Mr. Mussa Dafa, learned counsel for the Appellant, Mr. Leyani Mbise, learned counsel for the Respondent and Mr. John Gelvas, Court clerk is hereby certified as a true copy of the original. 15