George E. Starley vs Abdul Abdallah Mkwenya (Misc Civil Cause 10 of 1988) [1998] TZHC 2088 (8 May 1998)

IN TI·IE HIGH COUiiT OF 'l' 'J~~'.:\NI/, MISC. CIVIL. C!,USE.NO. 10 OF 1988 G'T,'OEGF. E. STttRLBY •••••••••••••••• , ••••• /1PPF:LU,NT VEHf)US JlJDGi-1-SNT

Mackanja, J. This is a very brief matter indeed. 'l'he apT>licant 1:.-,dgcd a civil action against the respondent p,.nd cne Tiama:l.ho.ni Abasi Sakapala. The respondent featured as the sec,,nl jofom:bnt. The suit was filed at the Court of Resident Magistrate at Kisutu. He' ,sow::;ht a number of reliefs, inclw-Jing a declnrati0n that he was th<, owner of the suit property. The second defen-lant, now the respondent, raised pre1iminary points of law, ar_91ing inter alia that the trial c•-mrt had nci jurisdiction because the suit property was errectecl on an unsurveyed area. nie preliminary objection WM sustained as a result of which tb,~ suit was: diRmissed with costs on 13th J.pril, 1988 0 The applic:mt di(l appe.::tl, bnt it ,113..S strucl- out on 27th June, 199,'3 because the ➔ mem•)randurn was not occumpanied by a copy of the drawn order. So once the appeal was struck c•ut there was no longer any appeal upon which this case fi10 could remain active. It ought, then, tel have been marked as determined. The instant application sh0ul-:l then have been the sub,ject of fresh proceedinr;:;.so De that as it mayo The purpos," of this ap1:-licr1t ion is for extem:.i0n of time within which the applicant ::1:-ay :c,iJf;ea.l unco c:i/,,3.in. It is contended by M/S Maira & Co. Aclvocate.; who reresont th e applican': that applicant's delay in appealinp: was caused hy his failure to secure a copy of yhe drawn order which is 0rroneously referred to as the )ecree. He 1;ot a certifierl copy or-the order on 10th July, "192•9~ As it can be seen he got it well ,after the appeal to this c0urt had been stck out. Mr. Raithntha has ar1tued that the 1elay in appealing wEJ.s occasioned by necliGence on the part of the applicant. I -m persuaded to cvree with this contention. For as Mr. Raithatha correctly points out,. the applicant remained inactive for some fourteen m0nths between the time he applied for copy of the decree and the time he obtained it. It appears irresistabl,:) to infor that lw.'1 the a1peal net been ,struck ,=;truck out thE: applicant would have remained in active 0

... 2 A delay of fourteen, months is, in my view; stron:; evidence of llG[!;li[';ence~ Lapses of this na.turo ner.r,1tos the court's exercise of discretion; Institute of ·Finance Manar;ement Vs. SS2L.13n,;t:1ki1,, (CA) Civil f,pplicaticn Ko~ 13 of i987. The applicatjon woula therefore failo t,pplication for extenti,·m 0.f time :.:ithin which to an,ieal i,s accordin,;ly dismissed with costs. Delivered. Appearances: Mr. Magafu, Adv: For Applicant Mr. Maira, fv:lvocate Mr. Raithatha, 1tdvocate: For Hespon.Jent I' f/' ·. , {47 ....... ·. ·-·--1---,.-,,,-; rJ- .. J: M. Mackanja l) JUDGE FJ/5/98