Bombo Lagwen vs Igwangwi Quaray (Civil Application No. 19 of 2013) [2014] TZCA 218 (22 September 2014)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: KILEO. J.A.. ORIYO 3.A. And MMILLA 3. A.) CIVIL APPLICATION NO. 19 OF 2013 BOMBO LAGWEN......................................................................... APPLICANT VERSUS IGWANGWI QUARAY...............................................................RESPONDENT (Application for strike out notice of appeal from the judgment/decree/order/finding/decision of the High Court of Tanzania at Arusha) (Sambo. 3.^ dated the 22n d day of 3anuary, 2009 in Civil Case Appeal No. 32 of 2005 RULING OF THE COURT 22n d & 22n d September 2014 KILEO. J. A.: At the hearing of the application filed under Rule 89 (2) of the Court of Appeal Rules, 2009 the applicant appeared in person. The respondent was not in appearance. His brother, one Michael Quaray informed the Court that the respondent was ill, suffering from diarrhea. He tendered in Court a medical report showing however, that the respondent was suffering from severe malaria. The report which is dated 19th September, i

2014 states that the respondent was admitted on 19th September and discharged on 24th September! We were of the view that the report could not be a genuine one as today is 22n d September, and we are yet to see 24th September. Further still, it is inconceivable that a discharge letter of a patient form hospital would be written on a date prior to his discharge. In view of the lack of genuiness of the medical report we proceeded to hear the applicant, having found the respondent to have failed to appear for no good reason. The applicant who was unrepresented did not have much to submit on his application for striking out the Notice of Appeal. He merely asked us to allow it. The Notice of Motion was supported by the affidavit of the applicant. The respondent filed no affidavit in reply. In the affidavit in support of the Notice of Motion the applicant stated that the Notice of Appeal filed on 25/8/2011 was time bared as the decision against which it was intended to be appealed against was delivered on 13/8/2008. On our part we are satisfied that the respondents. Notice of Appeal was filed out of time. The record of this application shows that the

decision that the respondent intended to challenge is dated 13/10/2008. The Notice of Appeal was filed on 24/8/2011, almost three years later! In terms of Rule 76 (2) of the Court of Appeal Rules, 1979 which were applicable in 2008 when the decision was given, the respondent was supposed to file his Notice of Appeal within fourteen days from the date of the decision which he intended to challenge. In consequence therefore, we find the application to have merit and we accordingly allow it. The Notice of Appeal filed on 24/8/2011 by the respondent is hereby struck out. The applicant shall have the costs of the application. DATED at ARUSHA this 22n d Day of September, 2014. E. A. KILEO JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL B. M. MMILA JUSTICE OF APPEAL I certify that this is a true copy of the original. . - 'E. Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 3