Charles Katelebe Mutoka vs Edward W. K. Bejumula & Others (Civil Application No. 326/17 of 2023) [2025] TZCA 1273 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KITUSI. J.A.. KAIRO 3.A. And MURUKE J.A.^ CIVIL APPLICATION NO. 326/17 OF 2023 CHARLES KATELEBE MUTOKA .............................. VERSUS APPLICANT EDWARD W. K. BEJUMULA ............ STELLA M. BEJUMULA ................... CRDB BANK PLC............................ ALOYSCIOUS GONZAGA MAN DAGO .1 st RESPONDENT .2 n d RESPONDENT 3 rd RESPONDENT 4™ RESPONDENT (Application for striking out Notice of Appeal arising from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) jd £ 22 t h December, 2025 KITUSI. J.A.: The applicant has prayed for an order under rule 89 (2) of the Court of Appeal Rules, 2009 (the Rules) that the notice of appeal earlier lodged by the first and second respondents be struck out, and Messrs Benard Mbakileki and Victor Ntalula, learned counsel represented him at the hearing. First of all, we granted Mr. Mbakileki's, prayer to proceed in the absence of the 3rd respondent upon being satisfied that service of the notice of hearing was effected on him, but he defaulted appearance. (Makani. J.l dated the 30th day of September, 2021 in Land Case No. 146 of 2018 RULING OF THE COURT i Mr. Lameck Erasto, learned advocate appeared for the first and second respondents resisting the application, whereas Mr. Wilso Ogunde, learned advocate for the 4th respondent did not contest it. In addressing us, Mr. Mbakileki raised two main reasons which also feature in the applicant's affidavit. The first reason was that the copy of the notice of appeal was served on the applicant on 20th October, 2021 which was the 15th day. The learned counsel referred us to rule 84 (1) of the Rules which requires such service to be within 14 days. He argued that service was made a day late and that such delay amounted to failure to take essential step in terms of rule 89 (2) of the Rules. Responding to this line of argument, Mr. Erasto submitted that the services was within 14 days. We have computed the time in terms of rule 8 (a) of the Rules and we are of the view that the notice of appeal lodged on 6th October, 2021 ought to have been served not later than 20th October, 2021. We therefore agree with Mr. Erasto that service was done within the prescribed time of 14 days. Mr. Mbakileki's second ground was that since the lodging of the notice of appeal on 6th October, 2021, the memorandum and records of appeal have not been filed, and served to the applicant within seven days. The learned counsel prayed that the notice of appeal should be deemed to have been withdrawn as per rule 91 (a) of the Rules. 2 Mr. Erasto appeared to concede to this point. Referring to paragraph 3 of the affidavit in reply of the 1st and 2n d respondents he agreed with the contention that after writing to the Register to request for copies of the necessary documents, which letter was not served on the applicant as required, the first and second respondents took no further steps to follow up. The learned counsel blamed the inaction on the previous advocate of the first and second respondents. He cited the case of Mohamed Suleiman Ghona v. Mahmood Mwemus Chotikungu, Civil Reference No. 179 of 2020 [2021] TZCA 109 TANZLII; for the principle that a party should not be punished for negligence of his advocate. In a short rejoinder Mr. Mbakileki submitted that the case cited by Mr. Erasto is distinguishable. We agree with Mr. Mbakileki that the case cited by Mr. Erasto is hardly relevant in the circumstances of this application. That case was dealing with application for extension of time in which a party was being blamed for his advocate's negligence. This is not an application for extension of time even though Mr. Erasto would wish it to be. There is no room in rule 89 (2) of the Rules, for a respondent to account for delay. In fine, we agree with the applicant that the first and second respondents failed or neglected to take essential steps in furtherance of their intended appeal. We grant the application and proceed to strike out the notice 3 of appeal lodged by the first and second respondents on 6th October, 2021 against the judgment and decree of the High Court, Land Division in Land Case No. 146 of 2018. The applicant shall have his costs against all respondents except the fourth who, through Mr. Ogunde, learned advocate prayed to be spared because he did not contest the application. DATED at DAR ES SALAAM this 11th day of December, 2025. Order delivered this 12th day of December, 2025 in the presence of Mr. Benard Mbakileki assisted by Mr. Victor Ntalula, both learned counsel for the Applicant, also holding brief for Mr. Wilson Ogunde, for the 4th Respondent and Mr. Lameck John Erasto, learned counsel for the 1st, 2n d Respondents and Mr. Peter Musseti, learned counsel for the 3rd Respondent and Ms. Anna Utou, I. P. KITUSI JUSTICE OF APPEAL L.G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL Court clerk, is hereby certified as a J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 4