Jeremia Karangi and Another vs Mpanda District Executive Director (Misc Civil Application No. 25 OF 1996) [1999] TZHC 463 (30 November 1999)

.,. .. 1:. ) IN THE HIGH COURT OF TA1\IZA1\IIA AT MBEYA MI:3C. CIVIL J\PPLICATION--NO. 25 OF 1996 CON.SOLID.A.TED .. WITH }'ISC •. CIVIL .APPLICATION NO. 26 OF 199~· (Froin _,the .. decision of the .District Cnurt of f 1 ,panda District at lV'parida in, l-'1isc. Civil Appli'cation No. 1 of 199~ - 'Or:ij;irial Civil ' Case· No. -.:9f 1995 of landa Di°strict Court :, .~ .• I J .• BEFORE: G.J .S. MBEYE - SDM)

1. JEREIV:I.A K.A.RAl\JGI)
2. WILFRED }''AZ.ALA ) • • • 0 • • • • • • • • • APPLICAl\lTS VERSUS MPANDA DISTRICT EXECUTIVE DIRECTOR • • • • • • • • • • • 0 • • R ·u L I -N G RESPONDENT The learned Mri Mbise, .Advocate for Vanda District Council has raised a preliminary point that the applicans Jeremia Karangi and Wilfred Mazala are time barred to proceed.with this application for leave to appeal to the ,., Court' of i.ppeal because they did not abide by Rule 43( a) of the Court of Appeal Rules, 197~{ .whiyh r69-uired them to " have filed their applicaion for 0 Ieave· to apeal within ! • l ' .) • • • • • l 14 days ,which they failed::to · d,o ;fo_r the ruling of this . . ~ . \ court was delivered on 19/8/97 and thfs application was filed on 15/9/97 outside the time lirr~t ~llowed to do so. ' ., T11e learned Mr. IVbise has conteruied further that the notice to appeal to Gourt• of Appeal against this ruling . was never served upon the Respondent( Mpanda District Council)himself in ~panda or to.his advocate the learned Mr. Mbise until now. So, he has prayed for preliminary f. • •• /2 I

) / . ~ ·:'', dismissal of this application by citing the Case Authority of Livingstone Silayo @ Sharu v_,--Collin Fred Temu G-2.w.t .. .c?!_ Appeal of Tanzania (ArusheJ_ __ gJvil ftHPli19P No. 3 of 1995 (unreported). The learned . l'fushokorwa_ (Ad':•) for the applicants has opposed this .. preliminary _point based on R. 46( 3) of the same Court of Appeal Rules of.19,79 which required this application to qe_acc?mpanied witq a copy of the ruling which was not supplied to the applicant within the 14 days tiITe limit demanded-by Rule 43 (a) of the same Rules. He further rgued that.the waiting time for the copy- of .the.ruling·to be supplied to the applicant should be excluded from the 14 days tirr limit or in other words that the 14 days count down sμould run \ ·::. was from the day the ruling :1 suppled whic~ dte. is:. undisclosed. The view of this-court is that there was an error . for their on the part_ of the applicant and his advoates L; failure to serve the written notice of appeal to the respondent. Not only that,but also:there was no oral notice of appeal entered in court on the day of delivering the ruling which should have put the respondent into alertness of . the pending appeal. So, the respondent until the: 14 days for filing the application elapsed was not aware of and served with both the notie of, appeal and appl,ic:ation itself until one month later when this application was the notice filed still withoutLof appeal having been served upon the ·respondent until now. ' . The reasoning advanced by the learned}. Mbise ' ( ltdy •)""that there was no need to attach a c_opy of the . ·ruling in this application for the applieation would have •.• /3

• 3 - been~ heard in this same court and file and that Rule 46 . ,,. • .. •. ·:.j ( 3) of Court .of App'eal .Rule~ 1979 apply to .appl.iqations . . : of ppeal be'ing filed in thet .. Supreme .cour:tLis quite valid. ' - ·• . . The application of s.16 (2)· o"f the Law of Limitation Act, 1972 apply in excluding the; time required to'obtain a copy of the.decree/judgeent or decree if that prticular ·appeal/application e{c. required the petition or memora- . ' ndum to be· accompanied by such a copy. If the application a in this case under Rule 43(a) of the Court of Appeal doesn't . Rules .. : - require the application to be accompanied by a ..... copy ~f {he ·ruling frofn which the applicatinn is being prepared then, s .• · 16(2) of the, Law of Limitation Act can not be brought into play at all. This application, all in all, I am satisfied is improperly before this court for failure to have served the notice of the intended appeal to the other party i.e. the ~~anda District Council or his Advocate the learned Mr. Mbise, _.-· for failure to have filed the application within the 14 days and for failure to have.first started with an application for leave to extend time to file this application. It is thus dismissed with costs against both applicants Jeremiah Karangi and Wildred Mazala in favour of the Kpanda District·eouncil,the respondent. E. L. K. MWIPOPO JUDGE 30/11/1999 •.• /4 '

: . ,,. .. ,. '-"...,...,•) 4 ..:. Date: 30/ll/99 . . . ~ . G,oram: Hon. E.L.K. Mwip6po, J • .For ..Applicants; Mr. us-hokorwa Advocate ~ .Ab.sent For Respondent: Mr. JVbise, Advocate ... Absent B/c.· Kosam .COURT:. Ruli1:1g_ delivered in the absence 0£ both .parties~ .District Registrar to. inform.them accordmglyl ·. "-· I \ . .,,,... E.'L.·-K. .. JUDGE ....:. AT MBEYA . ELKM/JJM '..I ~