Lous Augustine Mbuya vs Anthony John Kimatare & Another (Civil Application No.3 of 2013) [2014] TZCA 2279 (25 June 2014)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: KIMARO.J.A .. MANDIA.l.A .. And JUMA.J.A.) , ,·i;'., CIVIL APPLCATION NO.3 OF 2013 LOUS AUGUSTINE MBUYA .................................... APPLICANT VERSUS

1. ANTHONY JOHN KIMATARE ..................... RESPONDENT
2. THOBIAS LEON .MOSHI ........................... RESPONDENT (Application for amendment of documents in a civil appeal emanating from Land Case Appeal No.45 of 2012) 18 th & 27 th June, 2014 KIMARO,J.A.: (Mugasha. J.) dated 8 th March, 2013 in Land Case Appeal No. 45 of 2012 RULING OF THE COURT Lous Augustine Mbuya filed a notice of motion under Rule 48 and 50 of the Court of Appeal Rules, 2009. He is seeking for leave to amend pages 150 and 157 of the record of appeal filed in this Court on 25 th July,
3. He is also seeking for extension of time to amend the said pages. The application is supported by his affidavit. He deposed that he noted errors at pages 150 and 157 of the record of appeal related to the jurat of attestation on the certificate of urgency and his affidavit after filing the appeal. 1

At the hearing of the application Mr. Faustine Materu learned advocate appeared for the applicant. The first respondent appeared in person. He was not represented. Mr. Peter Shayo learned' advocate represented the second respondent. At the time of hearing the application the record of appeal was also annexed to the application. The Court noted, and both learned advocates conceded, that the record of appeal was not complete. The appeal filed emanated from a land dispute. Section 47(1) of the Land Disputes Court Act, [CAP 216 R.E.2002] requires the applicant to obtain leave of the High Court prior to filing an appeal in this Court. The learned advocate for the applicant admitted that the applicant did not obtain such leave before filing the appeal. Another defect noted from the record of appeal is that the notice of appeal at page 140 of the record of appeal is also defective as it shows that the applicant who is the appellant in the said appeal is appealing against High Court Civil Appeal No.45 of 2013 while the appeal which was determined by the High Court was Land Case Civil Appeal No.45 of 2012. The two cases are obviously different. Under the said circumstances the learned advocate for the applicant conceded that even if the application is granted he will not be able to proceed with the- appeal as it is incompetent for the defects noted; that is the notice of appeal citing a 2

different case and failure by the applicant to obtain leave of the High Court under section 47(1) of CAP 216 prior to the filing the appeal. The learned advocate for the applicant prayed to have the appeal be struck out without an order for costs. The learned advocate for the second respondent conceded to the prayer for striking out the appeal but prayed for costs. This is a matter which need not detain us long. The learned advocates for the parties having conceded to the defects in the record of appeal, there is no rationale for not granting the order for striking out the appeal. There is no appeal before the Court so both the application to amend the record of appeal and the appeal itself are struck out with costs for being incompetent. DATED at ARUSHA this 25 th day of Jurie, 2014. N.P.KIMARO JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I.H.JUMA JUSTICE OF APPEAL inal. 3