Kujaeli Samweli Msuya vs Yona Sanweli Msuya and Another (Miscellaneous Civil Application No. 32 of 1991) [1991] TZHC 2275 (8 August 1991)

0 / 4 VA IN TH'HIGH CoURT'OF TAN'ANIA ATARUSH MISCELLANEO.IIS C'IVILAPP1ICAT1ON NO. 32 OF 191 0 (MISCELLANEOUS CIVIL APPL. NO. 154 OF 1990) KUJAELI .SAMWELI MSUYA verus'. YONA SANWELI MSU.YA RESPONDENT OiIBAELI SAMWELMSUYA) ....... . • •, •. p. •, RULING MROSOJ. This application for stay f. execution has boen brought under Order 39 Rule 5 of the Civil Procedure Code, 1966, according to the 4 Chamber.summons. It is stated in1eganty, I must say, in toe Chamber.sununons as fç1lows - "(a) That execution in Misc. Civil Ap1ication N0, 154/9 be stayed, pending determinatirn of th.e intended' 4ppe.al to Tanzah'iA Court if Appeal;t' I assume the learned C,u.nse1 who drafted the chamber summots brought the application undetsi.ule (2) of rule 5 'f Order 3 because the application is being made to the c"urt (this court) O which heard and decided Miscerlaneous Civil App1icatio N. 154/90 and that the stay prayed for i.of execution of the decree r order by this court to the effect that -ne Solomon Thvana was app,inted the administrator of the estate of late SamweIi Msüya. Since this applicaijon was made before the time frsr ppeling the decree/order had expired, it was rnper1y filed in this court rather tean the nurt of Appeal to which".an appeal would' lie. The ruling of th'i.,c-'urt against which the applicant intended to appeal was given on 1/3/1 and this application was filed on 12th March, 1991. Hc4eve.r, the hearing -sf this application took place on 1/8/91, which is five month's or 153 days after the date of the ruling. Since the applicati.-n was made to this court in anticipation of an appeal which would be filed in the Cou€ of Appeal of Tanzania, I have had tr) ask myself whether the application before .me now has been made with due seriousness and sincerity. The question ......../2

The question I have 5'ust posed arises from the fact that during all these five months n 'ppel; has in fact been instituted in the Court of Appeal of.Tnzani. - Under Ru'e 83 (1) Of: the Tamzania CUrt of Appeal Rule.;, 1979 an appeal is instituted by lodging in the appropriate regis ;ry the. Arusha sub—registry in the present case, within sixty days of the date when the niotico,, of appeal was lodged, a memorandun of appea1 the record f appeal, the prescrired fee and the ècurity fotthe&sts of the appeal. It is h-wever provided in that Rule that 'where an application for copy' of the proceedings in the High Court has been made within thirty days of the date of the decision against which it is desired" to appeal; the time reuisite frr the preparation and de11ver' of the eopy to theapel1ant shall be excluded. Now, notice of intention to appeal was given on /3JJ. and sixtydays thence have pàsd, yet my enquiries have reveaLed that none of the, znattets mehlnedin Rule"83(l) supra have been .mplied with. Not even an:'ap1icatin for a copy of the proceedings appes to have been received in the subregistry todate. It ollws therefore, thatal€hough the 'Chamber Summons spaks of an intended appe1, which ought' by now t- have been instituted,.it seems t0 be a fake claim. If the, applicant really intended to appeal' this court's rU1ing'f l/3/.1, a!)dconsiderir that he has all aLong been represented by counsel, he would, have instituted the ippeal. .1 hold theview that this application has been made as a mere delay tatic and,'if granted,cruLd am.-unt to an abuse of the cort process. For that reasr mis , he ap icatir. with cot5. At Arusha: (J. A. Mroso) 8/8/91 , ' '- I JUDGE Mr; Maro for Maruma for Applicant. Respondent present in person. JAM/MJ