IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

(CORAM: MUSSA, J.A.. WAMBALI, 3.A., And LEVIRA. J.A.^

CIVIL APPLICATION NO. 212/17 OF 2019

EDGER MAOKOLA MAJOGO............................. ....................APPLICANT

VERSUS

1. HAJAT AIDAT SAID KILAHAMA

2. JAMADA AZIMIO SAID KILAHAMA ! ..................RESPONDENTS
3. SUED SAID KILAHAMA (Joint i
Administrators of the Estate of the Late
Alhaj Said Rashid Kilahama) J
[Application for an Order to strike out a Notice of Appeal lodged against the
decision of the High Court of Tanzania (Land Division)
at Dar es Salaam]
( Kalombola, 3.^

Dated the 28th day of August, 2015

in
Land Case No. 125 of 2012

RULING OF THE COURT

29th October &. 22nd November, 2019

WAMBALI, J.A.:
The High Court of Tanzania, Land Division entered judgment in favour

of the applicant, Edger Maokola Majogo in Land Case No. 125 of 2012. The

then defendant, the late Alhaji Said Rashid Kilahama was aggrieved by the

judgment and decree; he therefore, on 31st August, 2015 lodged a notice of

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intention to appeal to this Court. Subsequently, his advocate Mr. Mohamed

Tibanyendera, from Star Chambers Advocates, on the same date wrote a

letter to the Registrar of the High Court and applied to be supplied with the

certified copies of proceedings, judgment and decree for the purpose of

lodging an appeal.

In response to that letter, the Registrar of the High Court on 7th

December, 2016 through a letter with reference number Land Case No.

125/2012, informed the learned advocate that the requested documents

were ready for collection upon payment of necessary fees.

It is not out of place to point out that unfortunately, the then intended

appellant, Alhaji Said Rashid Kilahama passed away on 28th April, 2016. As

a result, through Probate and Administration Cause No. 605 of 2016, the

High Court at Dar es Salaam appointed Hajjat Aidat Said Kilahama, Jamada

Azimio Said Kilahama and Sued Said Kilahama as joint executors of the will

of the deceased.

Following their said appointment as executors, the Court on 28th

August, 2018 through Civil Application No. 180 of 2015 granted leave to the

present respondents to be joined in the place of the late Alhaji Said Rashid

Kilahama as legal representatives.

 Be that as it may, it is not disputed that to date the respondents have

not lodged an appeal. This state of affair prompted the applicant to lodge

the present application under Rule 89 (2) of the Tanzania Court of Appeal

Rules, 2009 (the Rules) seeking the order of the Court to strike out the notice

of appeal dated 31st August, 2015. The prayer is based on the alleged failure

of the respondents to take essential steps to lodge an appeal within the

period of sixty days required by law. The application is supported by the

affidavit of Edger Maokola Majogo, the applicant.

On the other hand, the respondents through the services of Mr.

Mohamed Tibanyendera learned advocate has resisted the application. In

his affidavit in reply on behalf of the respondents, Mr. Tibanyendera has

strongly emphasized that the respondents have taken essential steps as

provided by law, but the only impediment is that, the Registrar of the High

Court has not supplied his clients with the requisite documents to be able to

lodge the appeal.

At the hearing of the application Mr. Martin Rwehumbiza, learned

advocate appeared for the applicant while Mr. Mohamed Tibanyendera also

learned advocate entered appearance for the respondents. They both

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adopted the affidavit and affidavit in reply respectively and elaborated briefly

on the substance of their contention.

In his brief submission in support of the application, Mr. Rwehumbiza

explained that since the notice of appeal was lodged and after the

respondents were made parties in the place of the deceased who was the

intended appellant on 28th August, 2018, no action has been taken to ensure

that the appeal is lodged in Court. He argued further that, even after the

decree which was found to be defective by the Court was rectified by the

Registrar of the High Court on 3rd April, 2019, the respondents have not

taken any essential step to lodge the appeal and no sufficient explanation

has been offered to explain the said failure.

In the circumstances, Mr. Rwehumbiza, prayed to the Court to strike

out the notice of appeal with costs.

In response, Mr. Tibanyendera reiterated what he has stated in the

affidavit in reply that, the respondents have taken essential steps, including

obtaining leave to appeal, but the Registrar of the High Court has not

supplied them with all the relevant documents to be able to lodge an appeal.
 He argued that even the existence of a rectified copy of a decree

allegedly extracted on 3rd April, 2019 which was issued to the applicant, was

brought to his attention when he was served with the present application.

However, he contended that the Registrar of the High Court has not formally

communicated to him or the respondents that the said decree and other

documents are ready for collection. Mr. Tibanyendera therefore, emphasized

that to date the respondents have not obtained all the documents which

were requested by virtue of a letter dated 31st August, 2015. He strongly

submitted that the letter of the Registrar of the High Court dated 7th

December, 2016 informing him that the documents were ready for collection

is of no effect as it was based on defective decree which was issued earlier.

He therefore, maintained that the respondents still await to be informed by

the Registrar of the High Court to collect the relevant copies of the

proceedings, judgment and decree to be able to lodge an appeal. Even when

he was asked by the Court as to whether he has ever written to the Registrar

of the High Court to respond to the letter dated 7th December, 2016 or to

know whether the said documents are ready for collection after the

rectification of the decree, Mr. Tibanyendera stated that, he has many letters

to that effect, but did not attach the same to his affidavit in reply.

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 In the end, the learned advocate prayed that the application be

dismissed with costs for being misconceived as the respondents have taken

essential steps towards lodging the appeal.

Having heard learned counsel for the parties, the major question we

have to resolve is whether the application has merit. From the record of the

application, we have no doubt to state that since the notice of appeal was

lodged by the late Alhaj Said Rashid Kilahama on 31st August, 2015 to date,

it is almost more than four years and two months which have passed.

Yet, in terms of Rule 90 (1) of the Rules, an appeal must be lodged

within sixty days from the date of lodging the notice of appeal. The intended

appellant is thus required to ensure that he takes essential steps to have the

appeal lodged within the prescribed period. On the other hand, the intended

appellant can only explain the delay in failing to institute the appeal within

the prescribed period, if he has written to the Registrar of the High Court

and copied the said letter to the intended respondent within thirty days from

the date of lodging the notice of appeal, requesting to be supplied with

certified copies of proceedings, judgment and decree as provided for under

the proviso to Rule 90(1) and sub rule 2 of that Rule.

 In the present matter, according to the record of the application, the

respondents through the deceased applied to the Registrar on 31st August

2015 to be supplied with the requisite documents stated above. That letter

was replied by the Registrar of the High Court on 7th December, 2016, in

which the then respondent (late Alhaji Said Rashid Kilahama) was informed

through his advocate that the said documents were ready for collection.

Unfortunately, according to the record of the application, that letter has

never been replied to. The explanation of the counsel for the respondents

is that, as the then respondent died on 28th June, 2016, the process of

appointing the legal representatives to take the place of the deceased

respondent was underway as it was until 30th December, 2016 when the

High Court appointed the three respondents as executors of the will of the

estate of the late Alhaji Said Rashid Kilahama.

The other explanation offered by the counsel for the respondents is

that it was until 27th August, 2018 when the application for stay of execution

was called on for hearing before the Court when the order of joining the

respondents as legal representatives in a place of the deceased respondent

was made.

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 Moreover, Mr. Tibanyendera argued that on 28th August, 2018 the

same Court raised suo /770 ft/the issue of a defective decree and as a result,

the said application for stay of execution was marked withdrawn.

He thus, stated that it was until the respondents were joined as legal

representatives that they started to follow up with the Registrar of the High

Court seeking to be supplied with a proper copy of a decree which is yet to

be provided despite several reminders for the same. He however, submitted

that it only came to his knowledge after being served with the present

application that, the Registrar of the High Court has supplied the applicant

with a rectified copy of a decree which was extracted on 3rd April, 2019 as

stated by the counsel for the applicant. Nevertheless, he forcefully

submitted that, to date the Registrar of the High Court has never made

formal communication to the respondents on whether the decree and other

documents are ready for collection. Indeed, he argued further that, even

the letter dated 7th December, 2016 is of no effect as the respondents could

not have collected a defective decree as was found by the Court in the course

of hearing the application for stay of execution. Even when he was pressed

to show as per the record of the application, if he has any evidence to show

that he has ever communicated with the Registrar of the High Court to

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remind him to supply the respondents with the requested documents, he

stated that he has done so several times, but he had not attached a letter

to his affidavit in reply to support his contention. He thus insisted that the

respondents have taken essential steps towards lodging the appeal, but the

only impediment is the delay of the Registrar of the High Court in supplying

the relevant documents to facilitate the lodging of the appeal.

We have to note that on the part of the counsel for the applicant, it

was strongly argued that, even if the period from 31st August, 2015 up to 3rd

April, 2019 is discounted due to what transpired concerning the death of the

late Alhaji Said Rashid Kilahama, yet from that period to date, the

respondents have not shown that, they have made any effort to lodge the

appeal within sixty days since the decree was rectified as stated above. Mr.

Rwehumbiza argued further that, since the current application was lodged

on 13th June, 2019 to date, it is more than three months which have passed

and there is no indication showing that efforts have been taken by the

respondents to institute the appeal. It was thus prayed that the application

be granted as the respondents have failed to take essential steps to have

the appeal lodged in Court within the prescribed period.

 On our part, we are of the considered opinion that, the respondents

have failed to take essential steps to institute the appeal due to the following

reasons.

Firstly, even if the period between 31st August, 2015 when the letter

was written to the Registrar of the High Court requesting to be supplied with

the requisite documents to 30th December, 2016 as the date when the

respondents were appointed as executors of the will of the estate of the late

Alhaji Said Rashid Kilahama will be discounted, still there is no indication

that, they formally took the efforts to apply to the Court to be joined as legal

representatives in the intended appeal, a notice of which had already been

lodged. We say so because, it took the respondents almost one year and

eight months to apply informally, to be joined as legal representatives on

27th August, 2018 in the course of hearing of Civil Application No. 180 of

2015 which was specifically for seeking orders for stay of execution. The said

application was pending before the Court since 2015.

Secondly, even if we are to discount the stated period prior to the

Court's order granting leave for the respondents to be joined as legal

representatives, still there is no indication as per the record of the application

that, the respondents made any effort to contact the Registrar of the High
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Court to respond to his letter dated 7th December, 2016 informing the

learned counsel to collect the documents which were said to be ready for

collection. Indeed, as conceded by Mr. Tibanyendera, no any letter to that

effect has been attached to his affidavit in reply which was lodged in Court

on 24th October, 2019 to show that there is any communication between the

respondents and the Registrar of the High Court on the status of the

requested documents. This is despite the fact that the learned advocate's

affidavit in reply was lodged in the registry, just three days before this

application was heard by the Court.

Thirdly, it is further noted that, although the issue of a defective

decree was raised by the Court on its own motion on 28th August, 2018,

there is no documentary evidence from the respondents showing that, they

immediately thereafter applied to the Registrar of the High Court to have the

decree rectified for the purpose of including the same in the intended record

of appeal. In this regard, we find that the argument by their learned

advocate that the letter of the Registrar of the High Court dated 7th

December, 2016 is of no effect as the intended decree which was to be

collected was defective is unfounded. We say so because in the said letter,

it was not indicated that it was only the decree which was ready for

ii
collection, but it was all the documents which were requested for by the

respondents' counsel through his letter dated 31st August, 2015. Indeed,

even if the learned advocate could have collected a defective decree, as it

happened to the one which was used to support the application for stay of

execution, yet it was his duty to notice it and ask the Registrar of the High

Court to have it rectified by the trial judge. Nevertheless, we are alive to the

fact that even that defect was discovered by the Court and not the

respondents or their counsel who simply prayed to withdraw Civil Application

No. 180 of 2015 after that discovery. Thus, up to that time the respondents

through their advocate had not noted that the decree was defective. This

indicates that no sufficient efforts were made to follow up the matter with

the Registrar of the High Court who supplied the same.

Fourthly, we also note that after the respondents were served with

the present application which was lodged on 13th June, 2019, in which it was

indicated that, the said defective decree had been rectified since 3rd April,

2019, there is no indication shown in the affidavit in reply of the learned

advocate of any serious efforts which have been taken by the respondents

to follow up with the Registrar of the High Court to be supplied with not only

a rectified decree, but also other documents, including the proceedings,

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judgment and exhibits if any. To this end, we think, with respect, that the

submission of the learned advocate for the respondents that he has written

several letters to the Registrar of the High Court to demand the said copies

is from the bar and of no weight, as he had ample time to attach those

letters to his affidavit in reply which was lodged just three days before the

hearing of the application as intimated above. Besides, if those letters exist,

he would have copied the same to the applicant, but this is not the case.

The allegation is thus unfounded.

Fifthly, we are alive to the statement of Mr. Tibanyendera in

paragraph 7 of his affidavit in reply that, leave to appeal to this Court has

been granted to the respondents. However, the contention is not supported

by evidence. We hold this opinion, since he has not stated or attached a

letter to show that, he has applied to be supplied with a certified copy of the

proceedings, ruling and drawn order concerning leave to appeal or mention

the number of the application. Indeed, if the same has been supplied, he

could have attached a copy of the ruling to his affidavit in reply. Since leave

is one of the essential steps in lodging the appeal, sufficient explanation

supported by evidence could have helped to explain that some essential

steps have been taken by the respondents towards lodging the appeal.

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 In the event, based on our deliberation above, we respectfully agree

with the counsel for the applicant that, the respondents have not taken some

essential steps to lodge an appeal within the prescribed period. In the result,

we allow the application with costs. In the end, we strike out the notice of

appeal.

DATED at DAR ES SALAAM this 19th day of November, 2019.

K. M. MUSSA
JUSTICE OF APPEAL
F. L. K. WAMBALI
JUSTICE OF APPEAL

M. C. LEVIRA
JUSTICE OF APPEAL

The Ruling delivered this 22nd day of November, 2019 in the presence of the

Mr. Martin Rwehumbiza counsel for the applicant and Respondents who are

present in person is hereby certified as a true copy of the original.

H.P. Ndesamburo
DEPUTY REGISTRAR
COURT OF APPEAL

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