Miriam Rabieth Mndeme vs ABSA Bank of Tanzania Limited (Civil Application No. 20250521000938 of 2025) [2025] TZCA 1248 (10 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KITUSI, 3.A.. KAIRO 3.A. And MURUKE J.A .^ 1 CIVIL APPLICATION NO. 20250521000938 OF 2025 MIRIAM RABIETH MNDEME...................................................................APPLICANT VERSUS ABSA BANK OF TANZANIA LIMITED Formerly BARCLAYS BANK TANZANIA LIMITED...................................RESPONDENT (An application to strike out the Notice of Appeal filed on 20th February, 2023 by the respondent against the decision of the High Court of Tanzania District Registry of Dar es Salaam) (Nkwabi, 3) dated the 23r d day of 3anuary, 2023 in Civil Appeal No. 102 of 2021 RULING OF THE COURT 2nd & 10 December, 2025 KITUSI. J.A.: The applicant has moved us under rule 89(2) of the Court of Appeal Rules, 2009 (the Rules) seeking for an order striking out the respondent's notice of appeal dated 20th February, 2023 in respect of Civil Appeal No. 102 of 2021, High Court, Dar es Salaam District Registry. The application is supported by the applicant's affidavit which accuses the respondent of failure to take essential steps in furtherance of the intended appeal. The nature of the steps which the respondent failed to take is following up of copies of proceedings, judgment and decree for 29 months. The respondent is blamed for inaction because had she been proactive, the said i

documents would have been supplied to her as they were supplied on the applicant on 9th October, 2024. The respondent took an affidavit in reply through Dr. Onesmo Michael Kyauke, learned advocate who averred that the delay could not be blamed on the respondent. However, when the application was placed before us for hearing in the presence of Mr. Ndanu Emmanuel, learned advocate and Ms. Hamisa Nkya, also learned advocate, for the applicant and respondent respectively, the applicant's counsel prayed to withdraw it. Ms. Nkya did not object to that prayer so we marked the application withdrawn under rule 58 (3) of the Rules. There was a little bit of arguments on the issue of costs. Mr. Emmanuel pressed for costs on the ground that without the knowledge of the applicants, the respondent had taken the necessary steps being complained of. What struck the applicants as unnecessary concealing of information was the fact that although the respondent was served with the application as early as 29th May, 2025, she filed an affidavit in reply only recently on 28th November, 2025 disclosing the steps that had been taken. The kernel of Mr. Emmanuel's argument is that had he known the steps that had been taken, this application and the resources that went into it would have been uncalled for. 2

On the other hand, Ms. Nkya's response was that costs should not be awarded because the application has not been heard on merits. With respect we are of the view that the respondent's conduct demonstrates absence of courtesy to the applicant as well as to the Court. Secondly, it is not for the respondent that the matter did not go to full hearing. Therefore, we mark the application withdrawn with costs against the respondent. DATED at DAR ES SALAAM this 5th day of December, 2025. The Ruling delivered this 10th day of December, 2025 in the absence of the Applicant and Respondent and Ms. Rehema Makakala, Court Clerk ’ ‘ 1 ’ inal. I.P. KITUSI JUSTICE OF APPEAL L.G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL