Morogoro Auto Electric vs National Bank of Commerce Limited (Civil Application No. 1011 of 2024) [2025] TZCA 1277 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KITUSI, 3.A., KAIRO. 3.A.. And MURUKE. J.A.^ CIVIL APPLICATION NO. 1011 OF 2024 MOROGORO AUTO ELECTRIC..................................................APPLICANT VERSUS NATIONAL BANK OF COMMERCE LIMITED ........................ RESPONDENT (Application to strike out a notice of appeal in respect of the judgement and decree of the High Court of Tanzania, Dar es salaam District Registry) (Ebrahim. J.^ dated the 28th day of October, 2019 in Misc. Application No. 552 of 2017 RULING OF THE COURT 2n d & 12th December, 2025 KAIRO, J.A.: Before us, is an application made under rule 89 (2) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant seeks to have the notice of appeal lodged by the applicant on 22/11/2029 intending to challenge the decision of the High Court of Tanzania, Dar es Salaam District Registry in Misc. Civil Application No. 552 of 2017, struck out. The application is supported by an affidavit deponed by Jackson Liwewa, learned counsel who also represented the applicant at the l hearing. On the other hand, the respondent has resisted it by an affidavit in reply sworn by Dr. Onesmo Michael Kyauke. A brief account of the facts material to this application is that, the applicant instituted Civil Case No. 34/2002 in the District Court of Morogoro at Morogoro against the respondent which was decided in favour of the applicant. The respondent was not satisfied by the said end result and decided to appeal to the High Court of Tanzania, Dar es Salaam District Registry. However, the appeal was dismissed for being time barred on 9/2/2015. Following the dismissal, the respondent applied for an extension of time to file review of the said decision vide Misc. Civil Application No. 552 of 2017 at the High Court of Tanzania, Dar es Salaam Registry, but again it was dismissed on 28/10/2019. The respondent was further aggrieved and on 30/10/2019, she wrote a letter to the Registrar of the High Court requesting for certified copies of the judgement, decree and the proceeding for the purpose of appealing to Court. The applicant further on 22/11/2019, lodged a notice of appeal which the applicant is now seeking to have it struck out on the ground that, the respondent has failed to take essential steps towards the pursuit of the intended appeal. 2 Upon being served with the notice of appeal on 31/12/2019, the applicant filed a notice of address for service and served a copy to the respondent accordingly, but since then, no further recourse has been taken by the respondent. It was on this background that the applicant is praying for an order to strike out the notice of appeal with costs for contravening rule 89 (2) of the Rules which obliges the intended appellant to take essential steps towards the lodging of the intended appeal. At the hearing of this application, Mr. Liwewa, as alluded to earlier, represented the applicant while Ms. Hamisa Nkya, learned counsel appeared for the respondent. When invited to amplify his application, Mr. Liwewa submitted that, after the respondent wrote a letter to the Registrar requesting to be supplied with the certified copies of the proceedings, judgement and decree of the case intended to be appealed against on 30/10/2019, she was required under rule 90 (5) of the rules to make a follow up within 14 days if the requested documents were not supplied to him within 90 days since requested, but she did not do so. Mr. Liwewa submitted that, the omission amounts to failure to take essential steps towards the pursuit of the intended appeal, and therefore, the notice of appeal is liable to be struck out as a consequence. 3 Submitting further, the learned advocate stated that, though the respondent's affidavit in reply shows that she wrote a first reminder letter on 20/2/2023, that is 4 years later after writing a request letter to the Registrar, but the said letter cannot rescue the notice of appeal from being struck out as the same was written beyond the time prescribed under rule 90 (5) of the Rules. He added that, same position applies to the subsequent reminder letters listed in paragraph six of the affidavit in reply. To reinforce his arguments, Mr. Liwewa cited to us the case of Cable Setelite Consultancy Limited vs. Mwananchi Group Limited, Civil Application No. 631/01/2022 [2024] TZCA 881 (12 Sept 2024) TANZLII. In reply, Ms. Nkya conceded that, after being dissatisfied with the decision subject to challenge, the respondent decided to lodge the notice of appeal and wrote a request letter to the Registrar of the High Court on 22/11/2019 and 30/10/2019 respectively, as correctly submitted by Mr. Liwewa. She however refuted the assertion that, the respondent did not make a following up of the requested documents thus, contravened rule 90 (5) of the Rules. The learned counsel submitted that, the applicant wrote a reminder letter to the Registrar on 20/2/2023, that is four years later which was not replied to. She went on to submit that, the silence made the respondent to write several subsequent reminder letters as listed in paragraph six of the affidavit in reply as follows; on 11/5/2023, 4 30/4/2024, 29/8/2024 and 29/5/2025, but all in vain. On that basis, she contended, it was not correct that the respondent has not taken essential steps towards the lodging of the intended appeal as stated by the applicant. Ms. Nkya hastened to add that, though the lapse of 4 years might be considered long time which shows laxity on the part of the respondent, she maintained that, the act of writing the reminder letters still demonstrated the respondent's vigour and zeal to pursue the intended appeal. To buttress her submission, she cited the case of State Oil Tanzania Limited vs. Equity Bank Tanzania Limited & Another, Civil Application No. 426/16 of [2023] TZCA 712 (18 November, 2022) TANZLII. She concluded by beseeching the Court to find the application unmerited and dismiss it with costs. Mr. Liwewa repeated his submissions in chief as his rejoinder and reiterated his prayers to have the notice of appeal struck out. Having heard the rival arguments of the parties' counsel and thorough scrutiny of the Court record, the issue for our determination is whether the respondent contravened rule 90 (5) of the Rules and if yes, whether the contravention amounts to failure to take essential steps 5 towards the lodging of the intended appeal in terms of rule 89 (2) of the Rules. To appreciate the discussion to follow, our starting point is rule 90 (5) of the Rules. It states: - "(5) subject to the provisions o f sub rule (1), the Registrar shall ensure that a copy o f 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 the copy upon being informed by the Registrar to do so, or within fourteen (14) days after the expiry of ninety (90) days " [emphasis added]. Our understanding of the cited provision is that, after the lapse of 90 days from the date the intending appellant wrote a letter to the Registrar and no notification for collecting the requested documents is received from the Registrar's end, the intending appellant is required to take further steps within 14 days from the expiry date. In the case at hand, the request letter to the Registrar was written on 30/10/2019 and thus, the 90 days within which the Registrar was required to notify the respondent to collect the requested documents lapsed on 29/1/2020. 6 It is on record that, the further steps taken by the respondent was by writing a reminder letter to the Registrar which was effected on 20/2/2023, almost four years later. Much as the respondent made further steps to write a letter to remind the Registrar to supply the respondent with the requested documents, but the step was taken beyond the prescribed time of 14 days after the expiry of 90 days from the initial request. We are of firm view that, four years of inaction which was also conceded by Ms. Nkya, is by all standards inordinate. Though the case of State Oil Tanzania Limited (supra) was cited by Ms. Nkya to justify the respondent's lapse, but with due respect to the learned counsel, we find the cited case distinguishable and we shall explain: The respondent therein, though did not write the reminder letter within 14 days after the expiry of the 90 days from the initial request, he had earlier on written the reminder before the expiry of the 90 days (a month before the expiry date). That is what the Court considered to be "vigour and zeal" to pursue the intended appeal. To the contrary, the respondent herein wrote the reminder letter four years after the initial request. To say the least, the lapse shows lack of diligence on the part of the respondent and amounts to failure to take essential steps within the prescribed time and thus, contravened rule 90 (5) of the Rules. 7 Basing on the analysis above, we find the application meritorious. Consequently, in terms of rule 89 (2) of the Rules, we strike out the respondent's notice of appeal lodged on 22/11/2019 to challenge the decision in Civil Application No. 552/2017 dated 28/10/2019, with costs. DATED at DAR ES SALAAM this day 11th of December, 2025. I. P. KITUSI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 12thday of December, 2025 in the absence of the Applicant, who consented this ruling to be delivered in his absence, Ms. Hamisa Nkya, learned counsel for the Respondent and Ms. Anna Utou, Court Clerk, is hereby certified as a true copy of the original. 8