Leo Developers Ltd vs B. H. Ladwa Limited (Civil Application No. 182/01 of 2024) [2026] TZCA 344 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARI3A. 3.A.. MASHAKA. 3.A. And ISSA. J J U CIVIL APPLICATION NO. 182/01 OF 2024 LEO DEVELOPERS LTD .............................................................. APPLICANT VERSUS B. H. LADWA LIMITED ........................................................ RESPONDENT (Application for an order striking out the notice of appeal arising from the Judgment and Decree of the High Court of Tanzania, Dar es Salaam District Registry at Dar es Salaam) (Mugeta, J.) Dated the 28th day of August, 2023 in Civil Case No. 205 of 2022 RULING OF THE COURT 20th October, 2025 & 26th March, 2026 MWARIJA, 3.A.: The applicant, LEO Developers Limited has, by this application, moved the Court seeking the following orders: "1. That the Court may be pleased to strike out the notice o f appeal lodged by Nkoko Attorneys on 29h day o f August, 2023 on the grounds that: / ' The respondent has failed to file an appeal within the prescribed time. i

/ / . The respondent has failed to take essentia / steps in preferring an appeal within the prescribed time. 2. That the costs for and incidental to this application. . . be borne by the respondent." The application is supported by an affidavit sworn by Keval Dinesh Bhikha on 18/3/2024. The respondent, B. H. Ladwa Limited opposed the application through an affidavit in reply sworn by Nehemiah Geofrey Nkoko on 20/8/2024 and a supplementary affidavit in reply filed on 16/10/2025, sworn by the same person. The respondent countered the contention by the applicant that it failed to take essential steps to institute an appeal within the prescribed time. In both the affidavits in reply and the supplementary affidavit, the deponent contended that, the failure to institute the intended appeal within the prescribed time was due to the delay by the Registrar of the High Court (the Registrar) to supply the respondent with a copy of the proceedings (the proceedings). He contended that, although it applied for the proceedings, the same were not supplied promptly despite a written reminder and physical follow-ups to the Registrar. It was averred further that, the proceedings and the certificate of delay which was prepared on 9/1/2024

was supplied to the respondent on 23/2/2024 after the applicant, who was not the one who made the request had been availed the same on 18/1/2024. It was contended also, in the supplementary affidavit that, the supplied proceedings had a missing document; one of the exhibits which was admitted at the trial (Exhibit P2) and therefore, the respondent applied for the same and issuance of a new certificate of delay but was informed that, the document was supplied and therefore, the Registrar declined the request by the respondent to be supplied with a new certificate of delay. As a result, despite the fact that the applicant had lodged this application, the respondent lodged in this Court, an application for extension of time to file the intended appeal. At the hearing of the application, the applicant was represented by Mr. Barnaba Luguwa, learned counsel while the respondent was represented by Mr. Nehemiah Nkoko assisted by Mr. Robert Rutaihwa, both learned advocate. Submitting in support of the application, Mr. Luguwa argued that, after lodgement of the notice of appeal on 29/8/2023, the respondent did not take essential steps to institute the intended appeal. He stressed that, although according to the respondent's supplementary affidavit, it applied

for proceedings which could not be supplied by Registrar within the period of 90 days, it failed to make a reminder within 14 days of expiry of the 90 days as required by rule 90 (5) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Citing the case of Mcsom Investments Limited v. Ajay Kumar Dahylal Laxman and Others, Civil Application No. 23/01 of 2024 [2025] TZCA 534, the learned counsel submitted that, the respondent should have physically collected the proceedings. He added that, instead of doing so, the respondent wrote a reminder letter after expiry of 14 days from the date on which the Registrar notified it'by a letter dated 9/1/2024 that, the proceedings were ready for collection. It consequently collected a copy thereof on 23/2/2024 and thus had failed to take essential steps to institute the intended appeal. In response, Mr. Rutaihwa, who started by adopting the contents of the affidavit in reply and the one filed as a supplementary thereto, opposed the claim by the applicant that the respondent had failed to take essential steps in the institution of an appeal. He argued that, although after the respondent's application for the proceedings, the same were available together with a certificate of delay as of 9/1/2024, the same were not only received on 24/2/2024, but the proceedings lacked a copy of one of the documents which was tendered at the trial as exhibit P2. As a result, the

learned counsel for the respondent applied, by his letter dated 9//4/2024, for another certificate of delay excluding the days between 9/1/2024 and 24/2/2024. The request by the respondent was unsuccessful. It was informed by the Registrar vide a letter dated 30/5/2024 that, the certificate of delay was not defective. He added that after that reply which was reiterated in the Registrar's letter dated 21/10/2024, the respondent decided to file, in this Court, an application for extension of time to institute the intended appeal. He described that application as No. 254 of 2025. Citing the case of Zakaria Oggo v. Ashura Abdul and Another, (Civil Application No. 89/08 of 2017) [2018] TZCA 599, the learned counsel argued that, where the delay in filing an appeal is caused by the Registrar's omission to supply a complete set of documents, the appellant cannot be blamed that he did not take essential steps. He stressed that, since the information that the proceedings were ready for collection was not brought to the respondent's attention in time, the prescribed time for filing the intended appeal should not be taken to have started to run. In paragraph 10 of the supplementary affidavit in reply, it is stated as follows: "10. That, there has been consistence in following up the matter for purpose o f appeal despite the fact that the documents to institute the appeal were not

brought to the attention o f the respondent [in] time . " In rejoinder, Mr. Luguwa argued that, the applicant collected the proceedings from the Registry of the High Court and not as alleged by Mr. Rutaihwa that the same were served upon the applicant at its office. As for the contention that the respondent had applied to be supplied with a copy of a missing document (exhibit P2), Mr. Luguwa argued that, in its letter dated 13/12/2023, the respondent asked for a new certificate of delay, not a copy of a document alleged to be missing. From the submissions of the learned counsel for the parties, it is not in dispute that the proceedings were ready for collection on 9/1/2024. The respondent was accordingly so notified by the Registrar vide a letter of the same date (9/1/2024) and which was copied to the applicant. According to rule 90 (1) of the Rules, the respondent ought to have filed the intended appeal within the period of 60 days from the date of being notified that the requested proceedings were ready for collection. Until the date of filing the present application, the respondent had not filed the intended appeal. It was argued by the respondent's counsel that, the delay was occasioned by the fact that, the respondent was served with the proceedings

on 23/2/2024, meaning that, computation of the prescribed period of 60 days should not have been reckoned from the date of the Registrar's letter notifying the respondent that the proceedings were ready for collection. From paragraphs 4 and 5 of the affidavit in reply and the supplementary affidavit respectively, the deponent has raised serious allegations about existence of collusion between the Registry and the applicant intended to delay service of a copy of the proceedings and a certificate of delay upon the respondent. He states as follows in paragraph 4 of the supplementary affidavit in reply: "4.... for reasons not disclosed the said documents were served on the applicant herein a month and a week before they were brought to the attention of the respondent through me as advocate for the defendant who was aggrieved by the decision o f the High Court . . . " In our considered view, the blame by the respondent on the registry of the High Court is unfounded. The duty imposed on the Registrar by rule 90 (5) of the Rules is to notify the intended appellant that a copy of the proceedings is ready for collection. He is not required to serve it physically on any of the parties. It is not disputed that, the applicant obtained a copy of the proceedings on 16/1/2024. That was after the Registrar's letter of

notification to the respondent dated 9/1/2024. From the import of the provisions of the rule cited above, we are unable to agree with the learned counsel for therespondent that he was served with the proceedings at his office on23/2/2024. The Registrar does not have that obligation.Rule 90 (5) states as follows: "90. (1) ____ (3) ____ (5) Subject to the provisions o f subruie (1), the Registrar shall ensure a copy of the proceedings is ready for delivery within ninety (90) days from the date the appellant requested for such copy and the appellant shall take steps to collect copy upon being informed by the Registrar to do so or within fourteen (14) days after the expiry o f the ninety (90) days." [Emphasis added] 8

It is clear from this provision that, where the intended appellant is not notified to collect the requested copy of the proceedings, he is duty bound to take steps to collect the same from the registry within 14 days of expiry of the 90 days period. Obviously, therefore, the contention by the learned counsel for the respondent that he was served with the proceedings belatedly, is a unfounded. Since the same were ready on 9/1/2024, even if the respondent was unaware of the notification letter, the current position of the law is that, it was still bound to report at the registry to collect the same within 14 days of expiry of the period of 90 days. It instead of doing so, the respondent went to collect them on 23/02/2024, after a period of about 84 days from the date of expiry of ninety days. As for the contention that the respondent had instituted an application for extension of time to lodge the intended appeal, that contention is with respect, untenable. In the first place, the learned counsel for the respondent did not substantiate existence of that application. Secondly, from the stated number 254 of 2025, even if such was the case, the filing was done after the institution of this application on 19/3/2024. The contention is for that reason, an afterthought. 9

On the basts of foregoing reasons, we agree with the applicant that the respondent did not take essential steps to institute the appeal. In the circumstances, we grant the application and in terms of rule 89 (2) of the Rules, we strike out the notice of appeal with costs. DATED at DODOMA this 23rd day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Ruling delivered this 26th day of March, 2026 in the presence of Mr. Barnaba Luguwa, learned counsel for the applicant and Mr. Theodore Primus, learned counsel for the respondent connected vide video facility from Dar es Salaam and Mr. Shafii Kassim, Court Clerk, is hereby certified as a true copy of the original. D. R. 0 DEPUTY REGISTRAR COURT OF APPEAL