George E. Starley vs Abdul Abdallah Mkwenya (Misc Civil Cause 10 of 1988) [1998] TZHC 2086 (8 May 1998)

IN TEE HIGH comT Qf'_ T,\m'.tNL\ /,T D/.E ES S:lLM\M MISC. CIVIL. CJ.USE.NO. · 10· OF 1988 . .• G"f,,'ORGE E. STARLEY •••••••••••• : ••••••••• APPELLfJ\JT V B OR S U S ADDUL ;'.BDALL'.H MK:'J/ENYJ'. •••••••••••••••••• RESPOl'l'DENT JUDGMENT Mackanja 1 J. This is a very brief matter indeed. 'l'he applicant lodgEd a civil action against the respondent and cne Ramadhani J.basi Sakapala 0 The __ respondent featured as the second defendant., The suit was filed at the -:."-1. Court of Resident Magistrate at Kisutu. He sou,:,;ht a number of reliefs, including a declarat,i0n that he was th," owner of the suit property 0 The second defen·l.ant, now the responclent, raised preliminary points of law, arguing inter alia that the·trial court had na jurisdiction because the suit property was errectecl on an un,surveyed area. 'fi'1e preliminary objection was sustained as a ::'.'esult of which_:th.e _ _s_u.it w rlismissed •with costs on 13th April, 198q. The applicant did appeal, but it ;;ia.s ,struc11 out on 27th June, 199,(3 because the mernc'lrandum was not occumpanied by , a copy of the drawn order., So once the appeal was struck out there was no longer any appeal I upon which this case fil0"could remain activeo It ouc;ht, then, t0 have been ;;-iarked as determined. The instant application should then have been the subject of fresh proceedings. De that as it mayo The purpose of this ap:plico.tion is for extemion of time within which the 2,pplicant uny oiJC,eal once C:i./;ain. It is contended by M/S Maira & Coo Advocate13 who re~resent th e applicant that applicant's delay in appealing was caused by his failure to secure a copy of the drawn order which is erroneously referred to as the 'iecree. He got a certified copy of the order on 10th July, 1989" f,s t t call be seen he got it well after the appeal to this court had been strμck out .. Mro Raithatha has arr.0,1ed that the delay in appealing was occasioned by riecligence on the part of the ap-plic.mt, I r-i.rn persuaded to acree with this contention.. For as Mr. Raithatha correctly points out,, the applicant remained inactive for some fourteen months between the time he applied for copy of the decree and the tiine he obtained ito It appears irresistable to infer tha.t had the a1opeal not been .st:r:-uck struck out the applicant woulcl have remained in active.

.... 2 j A delay of fourteen months is, in my view; strong evidence of negligence Lapses of this nature ner,ates the court 9 s exercise of discretion; Iristit.ute or 'Finari.c~ · Manageent Vse ·sin:!I!apyki 1 (Cf,) Civil J.pplicaticn ' l\o 13 of 1987. The· ap.plicat.ion. woh1d therefore fail~ Application for extentirm of time within which to appeal is accordinr;ly dismisse1 with costs. Delivered. Appeara:hc~ .· Mro Magafu., !tdv: For Applicant Mro Maira, Advo'cate Mr.· Raithatha, ftdvocate: For Respondent I' 1:.,1 . , ,,_,(:,?;1._ ... -M:;:n-;:~7:;t- • ~UDGE: 8/5/98