Neshi Mwinjuma Kitogo vs Bank of Africa (T) Ltd & Others (Civil Appeal No. 882 of 2024) [2025] TZCA 1260 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KEREFU. J.A.. KHAMIS. J.A. And NANGELA. J.A.n CIVIL APPEAL NO. 882 OF 2024 NESHI MWINJUMA KITOGO..... ..................... . ............................ APPELLANT VERSUS BANK OF AFRICA (T) LTD....................................................1 st RESPONDENT ADILI AUCTION MART CO. LTD ................................. . ....... 2 nd RESPONDENT MOHAMED ABDALLAH MOHAMED ........ . .............................. 3 rd RESPONDENT SELEMANI MASOUD MKIRITI..............................................4™ RESPONDENT AMINA MOHAMED MKIRITI............................................... 5 th RESPONDENT BILOSTAR DEBT COLLECTOR CO, LTD................................. 6™ RESPONDENT NAM PULA AUCTION MART & CO. LTD ................................. 7™ RESPONDENT SEIF OMAR MADOTO.............................................................8™ RESPONDENT (Appeal from the Decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Morris, J.1 dated the 17th day of May, 2024 in Commercial Case No. 86 of 2023 RULING OF THE COURT 5th & 12th December, 2025 KHAMIS. J.A.: At the hearing of this appeal, the appellant was represented by Mr. Robert Oteyo, learned advocate who took over from the late Mr. Jethro Turyamwesiga, learned counsel who had lodged the record of appeal. Mr. Emmanuel Mbuga, also learned advocate, appeared for the 1st' 2nd, 6th, 7th and 8th respondents. In presence was also Mr. Jeremia Mtobesya, learned advocate, who acted for the third respondent, while the 4th and 5th respondents were absent although they were duly served. At the outset, Mr. Oteyo successfully moved the Court to proceed in the absence of the 4th and 5th respondents in terms of rule 112 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Following such order, Mr. Mbuga spotlighted the notice of preliminary objection earlier on filed by his clients on 2n d December, 2025, which confronted competency of the appeal on two facades, thus: one, the appellant failed to serve the respondents with copies of a notice of appeal contrary to the mandatory requirements of rule 84 (1) of the Rules which rendered the said notice invalid; and two, the appellant failed to serve the respondents with copies of a letter requesting for certified copies of the High Court proceedings for the purpose of appeal which contravened rule 90 (1) and (3) of the Rules and made the appeal time barred. On those basis, the learned counsel implored us to strike out the appeal with costs, for being time barred. On his part, Mr. Mtobesya did not contest the preliminary objection raised by Mr. Mbuga but refrained from making exhaustive submissions on it. 2 In response, Mr. Oteyo substantially differed with Mr. Mbuga and maintained that, the respondents were duly and timely served with copies of a letter by the appellant when she applied for certified copies of the proceedings, judgment and decree and with copy of the notice of appeal. On those basis, he invited us to overrule the preliminary objection for the alleged lack of legal and factual bedrock. In specific response to the issues raised, Mr. Oteyo produced various receipts issued by the Tanzania Posts Corporation on 20th May, 2024; 18th June, 2024; 2n d October, 2024; and 28th November, 2025 as well as the affidavits sworn by one Joshua Mwaituka, a licensed court broker and process server, t/a Fosters and Company Broker. The said documents showed that, a letter by the appellant's counsel requesting for certified copies of the proceedings, judgment and decree from the Registrar of the High Court was served on the 4th and 5th respondents on 20th May, 2024. The notice of appeal was served on the 4th and 5th respondents through post on 18th June, 2024. Mr. Oteyo asserted that, the documents produced revealed that, the letter by the appellant requesting for copies of the proceedings, judgment and decree was served on the 1st, 2nd, 6th, 7th and 8th respondents on 20th May, 2024 while the 3rd respondent was served with it on the same date, 20th May, 2024. He stressed that other respondents were also served with copy of the notice of appeal as per the record of appeal and the affidavits of a court process server. On rejoinder, Mr. Mbuga contended that, the alleged service of a letter for copies of the proceedings and the notice of appeal on the respondents was improper as the receipts issued by the Tanzania Posts Corporation showed the postal fees were paid by Mr. Robert Oteyo, learned counsel for the appellant and not the court broker. He relied on our decision in the case of Hi Bros Canvas & Tents Limited & Parves Abdul Hussein Hirji v. I & M Bank (T) Ltd, Civil Appeal No. 546 of 2022 [2025] TZCA 329 (28 March, 2025) for the proposition that, proof of service of a document should be made by an affidavit of a court process server who specifically served the relevant document and not by a counsel for the party to the case. We have examined the record and considered the counsel rival submissions on the preliminary objection. The issue which commands determination is whether the appeal is incompetent on account of the appellant's failure to serve the respondents with copies of a letter requesting for the certified copies of the proceedings, judgment and decree and the notice of appeal. In resolving the issue, we ascertained that, the impugned judgment was delivered on 17th May, 2024 and the appellant applied for copies of the proceedings, judgment and decree on that same date, 17th May, 2024. The notice of appeal was lodged on 10th June, 2024 well within the prescribed time. The documents produced by Mr. Oteyo showed the 4th and 5th respondents were served with copies of a letter by the appellant seeking for the copies of the proceedings, judgment and decree on 20th May, 2024. They were also served with copies of a notice of appeal on 18th June, 2024. The record of appeal is silent regarding service on the respondents of the appellant's letter to the Registrar of the High Court when she applied for copies of the proceedings, judgment and decree. The said letter shown at page 176 of the record was written by RCO Advocates on 17th May, 2024 and lodged in Court on the same date. However, a subsequent reminder letter written by the appellant's counsel on 22n d July, 2024 which featured at page 177 of the record of appeal showed that it was served on the counsel for the 1st, 2nd, 3rd, 6th, 7th and 8th respondents on 30th July, 2024. This letter and its service on the respondents is not relevant to the issue before us because in view of the provisions of rule 90 (3) of the Rules the question is whether the 1st, 2nd, 3rd, 6th, 7th, and 8th respondents were timely served with copies of a letter to the Registrar of the High Court written by the appellant's counsel on 17th May, 2024. 5 It should be noted that, the documents produced by Mr. Oteyo were helpful in addressing that question. The postal receipts issued by the Tanzania Postal Corporation and the affidavit by a court process server showed that copies of a letter by the appellant when she applied for copies of the proceedings, judgment and decree was given to the court broker on 18th May, 2024 who successfully served it on the learned counsel for the 1st, 2nd, 3rd, 6th, 7th and 8th respondents on 20th May, 2024. The record of appeal further reveals at pages 173 - 174 that, the notice of appeal was served on Mr. Mbuga t/a Legis Attorneys on 13th June, 2024 and to Mr. Mtobesya t/a Juris Peritis on 24th June, 2024. This fact was corroborated by the depositions of Joshua Elias Mwaituka in his affidavit dated 18th November, 2025 which was not challenged by Mr. Mbuga. Rule 84 (1) of the Rules provides that an intended appellant should serve copies of the notice of appeal to all persons directly affected by the appeal within 14 days of lodging of the notice of appeal. As earlier on stated, the notice of appeal in this matter was lodged on 10th June, 2024 and served on the 4th and 5th respondents on 18th June, 2024. It was also served on the third respondent on 24th June, 2024 and to the 1st, 2nd, 6th, 7th, and 8th respondents on 13th June, 2024. 6 These dates of service, to wit, 13th, 18th and 24th June, 2024 were within the 14 days required for service of the notice of appeal reckoned from 10th June, 2024 when the said notice of appeal was lodged. Equally, a letter by the appellant's counsel when applying for copies of the proceedings, judgment and decree was presented in court on 17th May, 2024 and served on the 1st, 2nd, 4th, 5th, 6th, 7th and 8th respondents on 20th May, 2024. The third respondent was served with it on 24th May, 2024. These dates fell within the requirements stipulated under rule 90 (3) of the Rules. In Novatus Williams Nkwama v. TUGHE, Civil Appeal No. 354 of 2020, we referred to our earlier decision in the case of the Principal Secretary Ministry of Defence and National Service v. Devram Valambia [1992] T. L. R. 387 and pointed out that, although, rule 90 (3) of the Rules did not specify the time frame within which to effect service of a letter on the other parties when applying for copies of the proceedings, judgment and decree, the law as it stands is that, such a letter is to be served within thirty (30) days from the date of the impugned decision. In this appeal the respondents were served with copies of a letter after 3 and 7 days from the date of the impugned decision which dates fall within the period of 30 days. As such, we find no merits on the preliminary objection. 7 In the circumstances, the preliminary objection raised by Mr. Mbuga is hereby overruled with costs. It is so ordered. DATED at DODOMA this 11th day of December, 2025. Ruling delivered this 12th day of December, 2025 via Virtual Court in the presence of Mr. Robert Oteyo, learned counsel for the Appellant, Mr. Mbuga Emmanuel, learned counsel for the 1st, 2nd, 6th, 7th, and 8th Respondents, in the absence of 3rd, 4th, and 5th Respondents and Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL 8