Khalid Bakari Kilewo vs John Ackley Matoyi (Misc Civil Applicatlon No. 6 of 2013) [2014] TZCA 2266 (16 June 2014)

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: KIMARO,J.A., MANDIA,l.A., And JUMA,l.A.}. MISC CIVIL APPLICATlON NO. 6 OF 2013 KHALID BAKARI KILEWO .................. ............. ...... APPLICANT VERSUS JOHN ACKLEY MATOYI. ................•.................. RESPONDENT (Application to strike out notice of appeal in a decision of tJ.,e High Court of Tan~ania at Moshi) (Mussa,].} dated· 29 th April, 2004 Misc Land Appeal No.13 of 2010 . RULING OF THE COURT 13 th & 18 th June, 2014 KIMARO,J.A.: I The applicant has moved the Court through a notice of motion filed under Rule 89(2) of the Court of Appeal Rules, 2009 to strike out a notice of appeal filed by the respondent for failure by the respondent to take . essential steps in pursuing his appeal. The application is supported by his own affidavit. At the hearing of the appeal, the applicant appeared in person. The respondent was represented by Mr. John Materu learned advocate. His 1

· client, John Ackley Matoyi filed an affidavit in reply disputing what is deposed in the affidavit of the applicant. He said he filed Misc. Land Application No. 40 of 2013 in which he is seeking for extension of time to file an application on a certificate on a point of law and it is pending determination in the High Court of Tanzania at Moshi. The gist of the applicant's application as contained in the affidavit he •· · filed in support of the application is that: the respondent was aggrieved by the decision of the High Court in Misc-Land App~al Case No. 13 of 2010. The decision was delivered on 13 th May, 2011. He filed a notice of appeal which was duly served on the applicant on ih June, 2011. The respondent also filed Misc. Land Case No. 25 of 2011 in the High Court of Tanzania seeking for leave to appeal against the decision of the High Court but the •· application was withdrawn on 24 th July, 2013 because it was filed out of time. It was withdrawn with liberty to file the same. The applicant avers further that the respondent ought to have filed an application certifying that there is a point of law involved in the matter so as to justify an appeal to this Court because the matter originated in the Uchira Ward Tribunal. During the hearing of the application, the applicant insisted that the respondent has not taken the essential step required in pursuing the 2

appeal. He prayed that the notice of appeal be struck out with costs as the respondent failed to take the essential steps necessary to allow him file the appeal. The learned advocate for the respondent submitted in reply that the respondent has not been sitting idle. He admitted that there was an earlier application that was filed by the respondent in which he was seeking for leave to appeal against the decision of the High Court. However, the application was withdrawn after the respondent realized that it was filed out of time. He said another application, Misc. Civil Application No.40 of 2013 in which the respondent is seeking for· extension of time to file an application on a certificate on a point of law is pending the High Court. He said the applicant is aware of the pending application and he also filed an affidavit in reply. According to the learned advocate, the application is scheduled for the hearing on 23 rd July, 2014. He cited the cases of Foreign Mission Board of the Southern Baptist Convention V . Alexander Panomaritis [1984] T.L.R. 146, Alhaji Abdallah Talib V Eshakwen Doto Kiweni Mushi _[1990] T.L.R. 108 and Trans continental Forwarders Ltd V Tanganyika Motors Ltd [1997] . T.L.R.328 to support his submissions. He said all the three cases were 3

concerned with similar applications and the Court dismissed the applications. He prayed that the application by the applicant be dismissed with costs as it lacks merit. In his brief reply the applicant insisted that since the application filed by the respondent only seeks for extension of time to file an application on . a certificate of law without also seeking for leave to appeal, the respondent . . has not taken essential steps necessary to enable him pursue the appeal. He prayed that his application be allowed. After going through the notice of motion, the supporting affidavit and the affidavit in reply together with the submissions and the authorities supplied, we are satisfied that the application before us has no merit. The decision to which the respondent filed a notice of appeal was delivered on 13 th May, 2011. The respondent filed the notice of appeal on 16 th May, 2011. This was followed by an application for leave to appeal against the decision on 13 th June, 2011. The application was filed under section 5(1) (c) of the Appellate Jurisdiction Act and Rule 45 (a) of the Court of Appeal Rules, 2009. The provision of Rule 45(a) of the Rules requires the applicant to file the application within 14 days of the decision. Since the respondent filed the application on 13 th June, 2011 it is obvious that the 4

application was filed out of time. It was a wise idea for him to withdraw the application and take appropriate steps that would enable him. to file a competent appeal. Misc. Land Application No; 40 of 2013 was filed on 19 th August, 2013 after the previous application was .. withdrawn on 24 th July, 2013. The application is filed under section 11(1) of the Appellate Jurisdiction Act and Rule 47 of the Court of Appeal Rules and it seeks for extension of time to file an application for a certificate on a point of law to enable him to file an appeal in this court. In as far as the position of the . respondent is concerned, we cannot agree with the applicant that the respondent has not taken steps in pursuing his appeal. Whether the application he has filed is the correct one or not, it is not our duty at this point in time to give a decision on it. The cases referred to us by the learned advocate for the respondent were concerned with an application for striking out a notice of appeal for failure on the part of the respondent to take an essential step in pursuing the appeal. The Court found out that the delay in filing the appeal in time was not occasioned by the respondent. The Court further observed that the respondent had the right to ask for extension of time where he was delayed for no fault of his in obtaining what was necessary for him to file 5

I . the appeal in time. Since no appeal has been filed and the respondent is still in the process of taking the essential steps which will enable him to file the appeal we do not see merit in the application filed by the applicant. As we stated before, whether he will successfully go through the process or not is not our concern at this point in time. We dismiss the applicant's application with costs. It is ordered. DATED at ARUSHA this 16 th day of June, 2014. N.P.KIMARO JUSTICE OF APPEAL W.S.MANDIA JUSTICE OF APPEAL I.H.JUMA JUSTICE OF APPEAL 6