Hydrox Industrial Services Ltd & Another vs CRDB Bank PLC & Others (Civil Appeal No. 000646 of 2025) [2025] TZCA 1236 (5 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KEREFU, J.A.. KHAMIS. 3.A.. And NANGELA. J.A.^ CIVIL APPEAL NO. 000646 OF 2025 HYDROX INDUSTRIAL SERVICES LT D ..............................1 st APPELLANT DICKSON KASHURA ........................................................ 2 nd APPELLANT VERSUS CRDB BANK PLC (Form erly known as CRDB (1996) L T D ) ............. 1st RESPONDENT ANGELO PASTORY MUTTA.............................................. 2 nd RESPONDENT OLDONYOLENGAI AUCTION MART ................................ 3 rd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (Muruke, 3.) dated the 17th day of October, 2011 in Civil Case No. 194 of 1999 RULING 3rd & 5th December, 2025 KEREFU. J.A.: When the appeal was called on for hearing, the appellants were represented by Dr. Abdon Rwegasira, learned counsel, whereas the first respondent was represented by Messrs. Dr. Aron Kinunda and Bedda Kapinga, both learned advocates. The second and third respondents did not enter appearance though they were duly served through publication in the Mwananchi Newspaper dated 20th November, 2025. On that basis, the hearing of the appeal proceeded under Rule 112 (2) of the Tanzania i Court of Appeal Rules, 2009 (the Rules) in the absence of the second and third respondents. However, before we could embark on the hearing of the appeal on merit, we invited the learned counsel for the parties to address us on competence of the appeal before us on account of the the certificate of delay which erroneously exempted days from 2nd December, 2024 when the appellant requested for copies of proceedings, ruling and drawn order in Miscellaneous Civil Application No. 17247 of 2024, which was on extension of time to lodge the notice of appeal to 13th February, 2025 when they were notified that the said documents were ready for collection. We decided to take that route on account of the following; one, that, the impugned decision was handed down on 17th October, 2011 and the notice of appeal found at page 461 to 462 of the record of appeal was lodged on 29th November, 2024 after the appellant was granted extension of time to lodge the same vide Miscellaneous Civil Application No. 17247 of 2024; two, the memorandum of appeal was lodged, in this Court, on 8th April, 2025 after lapse of almost 129 days from the date of lodging the notice of appeal; and three, the appeal is accompanied by two different certificates of delay issued by the Registrar of the High Court on 18th February, 2022 and 26th February, 2025 respectively. In his response, apart from conceding that the appeal was accompanied by two different certificates of delay, Dr. Rwegasira was quick to argue that, the second certificate was issued following a request by the appellants to the Registrar of the High Court, vide a letter dated 2n d December, 2024 to be supplied with certified copies of the proceedings in Miscellaneous Civil Application No. 17247 of 2024 which was on extension of time to lodge a notice of appeal. According to him, the second certificate of delay was valid and can be relied upon by the appellants to rescue the appeal. On his part, Dr. Kinunda challenged the submission made by his learned friend by arguing that, since the appellants lodged the notice of appeal after being granted an extension of time, the provisions of rule 90 (1), (2) and (3) of the Rules were not applicable. That, the second certificate of delay was invalid and cannot be acted upon by the Court because the Registrar excluded the period which was not used to prepare the documents in respect of the impugned decision. He also 3 added that, it was improper for the appeal to be accompanied by two certificates of delay as the first certificate was not withdrawn by the Registrar of the High Court. He thus insisted that, the appeal was incompetent as it was lodged beyond the sixty (60) days from the date of lodging the notice of appeal. On that basis, Dr. Kinunda urged us to strike out the appeal with costs for being time barred. In a brief rejoinder, Dr. Rwegasira did not have much to submit other than praying for the appellants to be spared from costs. On our part, having perused the record of appeal and considered the submissions made by the learned counsel for the parties, we agree with Dr. Kinunda that, indeed, the appeal before us was lodged out of the time prescribed under Rule 90 (1) of the Rules. Pursuant to that Rule; one, an appeal is mandatorily required to be instituted within sixty (60) days from the date when the notice of appeal was lodged; and two, in order for the appellant to benefit from the exclusion of the period envisaged under the proviso to that Rule, he or she must apply for a certified copy of the High Court's proceedings within thirty (30) days from the date of the decision sought to be challenged and that a copy of the appellant's 4 letter requesting for the said documents must be served on the respondents. In the instant appeal, as conceded by Dr. Rwegasira, the impugned decision was delivered on 17th October, 2011 and the notice of appeal was lodged on 29th November, 2024 after the appellant was granted an extension of time vide Miscellaneous Civil Application No. 17247 of 2024. As such, and as correctly argued by Dr. Kinunda, the provisions of rule 90 (2) and (3) of the Rules cannot be invoked. Therefore, the appellants were required to lodge a memorandum of appeal within sixty (60) days from the date of lodging of the notice of appeal and not otherwise. Likewise, the appellants are not entitled to benefit from exclusion of the days envisaged under the proviso to rule 90 (1) of the Rules. In addition, and as correctly argued by Dr. Kinunda, it is improper for the appeal to be accompanied by two certificates of delay. Thus, the second certificate of delay issued by the Registrar of the High Court on 26th February, 2025 purporting to exclude the period from 2n d December, 2024 to 13th February, 2025 is invalid. This makes the appeal which was lodged on 8th April, 2025 incompetent as it was lodged 5 beyond sixty (60) days after lodging a notice of appeal on 29th November, 2024. In the event, we hereby struck out the incompetent appeal for being time barred. We make no order as to costs. DATED at DAR ES SALAAM this 4th day of December, 2025. R. J. KEREFU JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Ruling delivered this 5th day of December, 2025 in the presence of Dr. Mr. Dickson Kashura, the 2n d Appellant and Director of the 1st Appellant, Dr. Aron Kinunda, learned advocate for the 1st Respondent, in the absence for the 2n d and 3rd Respondents and Ms. Harida Musa, Court clerk, is hereby certified as a true copy of the original. 6