IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

(CORAM: SEHEL, J.A., KIHWELO, J.A. And MDEMU. J.A.^t

CIVIL APPLICATION NO. 776/01 OF 2022

SEBASTIAN RAPHAEL............................................................................ APPLICANT

VERSUS
AIRTEL TANZANIA LIMITED...................... .......................................RESPONDENT
(Application to strike out notice of appeal filed against the decision of
the High Court of Tanzania at Dar es Salaam)
(Mlvambina, J.)

dated 2nd day of July, 2021

in
Civil Appeal No. 251 of 2019

RULING OF THE COURT

11th & 28th June, 2024

SEHEL. J.A.:

The applicant through the legal services of B & E Ako Law Firm is

seeking an order that the notice of appeal filed by the respondent on 23rd

July, 2021 be struck out on ground that the respondent failed to take

essential steps in lodging its intended appeal to the Court. The notice of

motion is predicated on rule 89 (2) and 48 (1) of the Tanzania Court of

Appeal Rules (henceforth "the Rules") and it is supported by an affidavit of

the applicant himself. The respondent, on the other hand, resisted the

application by filing an affidavit in reply.

 A brief background leading to this application as could be gathered

from the record is that; the respondent sued the applicant before the

District Court of Kinondoni at Kinondoni (the trial court) claiming, among

other things, for payment of TZS. 51,000,000.00 as costs incurred for

creating a jingle for a contest advertised by the respondent. Having heard

both parties, the trial court was convinced with the applicant's claim that

the respondent invited contestants to submit proposal on marketing

strategy styled as "Hakatw i MW Remix" and promised the winner to be

advertised as a star and later be given an opportunity to record. However,

the applicant who won the contest was neither given an opportunity to

record nor was he advertised as a star. It accordingly awarded him the

entire claimed amount, that is, TZS. 51,000,000.00 being costs incurred for

creating the jingle and condemned the respondent to pay costs of the suit.

The respondent was aggrieved with the said decision. It lodged its

appeal to the High Court of Tanzania Dar es Salaam (the High Court) which

was later on dismissed with costs on 2nd July, 2021 on account that it was

lodged out of time. Feeling aggrieved with the dismissal of its appeal, on

13th July, 2021, the respondent wrote a fetter requesting to be supplied

with the copies of proceedings, judgment and decree for appeal purposes
and on 23rd July, 2021, it lodged a notice of appeal. Almost a year later, the

respondent wrote a reminder letter to the High Court following up on its

request to be supplied with the necessary documents for lodging the

appeal. Five months later, that is, on 28th December, the applicant lodged

the present application.

On 11th June, 2024, when the application was called on for

hearing, Mr. Phillip Lincoln Irungu, learned advocate, appeared for the

applicant, whereas, Mr. Gaspar Nyika, learned advocate appeared to

represent the respondent.

Having taken the floor and adopted the notice of motion, affidavit in

support of the application and the list of authorities, Mr. Irungu argued that

after the respondent had lodged its notice of appeal and made an

application to be supplied with certified copies of ruling, drawn order and

proceedings, it took five months to make a follow up. He elaborated that

rule 90 (5) of the Rules imposes a duty not only to the Deputy Registrar of

the High Court (the Deputy Registrar) but also to the intended appellant.

That, while the Deputy Registrar is required to supply the requested

documents to the intended appellant within ninety days from the date of

the request, the intended appellant is required to take steps to collect the
same upon being informed or within fourteen days after the expiry of

ninety days. It was his submission that ninety days lapsed on 12th October,

2021 but the respondent did not take any steps within the prescribed

period of fourteen days. He argued that, with the introduction of sub-rule 5

to rule 90 of the Rules through the Tanzania Court of Appeal (Amendment)

Rules 2019, Government Notice Number 344 of 2019 (G.N. No. 344 of

2019) , 'the home and dry raid is no longer applicable, as such, he argued,

the inaction of the respondent is a proof that it is no longer interested in its

appeal.

Mr. Irungu went on to assail the respondent's reminder letter dated

25th July, 2022 that it is worthless as it was written after the lapse of

fourteen days prescribed under rule 90 (5) of the Rules. He added that

since the respondent did not write a reminder letter within fourteen days,

the Court should find that the respondent failed to take essential steps in

prosecuting its appeal. To bolster his point, he cited the Courts decisions in

Monica Makungu v. Director of Education Department,

Archdiocese of Mwanza (Civil Application No. 31 of 2021) [2022] TZCA

49 (21 February, 2022; TANZUI); Beatrice Mbilinyi v. Ahmed Mabkhut

Shabiby (Civil Application No. 475 of 2020) [2021] TZCA 79 (12 March
2021; TANZLII) and Tanga City Council & 4 Others v. Tanga General

Industries Limited (Civil Application No. 162/12 of 2023) [2024] TZCA

346 (9 May 2024; TANZLII). He therefore prayed that the notice of appeal

be struck out with costs.

In reply, Mr. Nyika adopted the affidavit in reply and strongly opposed

to the application. He submitted that the respondent had complied with

the legal requirement provided under Rule 90 (1) of the Rules as it lodged

notice of appeal and wrote letters as evidenced by SB3 and SB4 attached to

the affidavit in support of the application. He argued further that the

respondent also took steps by writing a reminder letter dated 25th July,

2022 and made physical follow ups of the requested documents which are

yet to be supplied. It was his submission that the law imposes a duty on

part of the Deputy Registrar to supply and notify the intended appellant

that documents are ready for collection, and that, the intended appellant is

required to go and collect them within fourteen days. He further argued

that the law does not impose any obligation to the intended appellant, that

is, it does not require it to write a reminder letter within fourteen days after

the expiration of ninety days within which the Deputy Registrar was

obligated to supply the requested documents. It was the submission of Mr.

Nyika that since the respondent complied with the law and it had not been

notified that the requested documents are ready for collection, the Court

should find that the respondent had taken all essential steps required by

the law. He fortified his submission by referring the Court to its earlier

decision in the cases of Kaemba Katundu v. Shule ya Sekondari

Mwilamvya, (Civil Application No. 523 of 2020) [2021] TZCA 312 (16 July

2021; TANZLII) and Tanga City Council & 4 Others v. Tanga General

Industries Limited (supra). At the end, Mr. Nyika urged the Court to

dismiss the application with costs.

In rejoinder, Mr. Irungu reiterated his earlier submission that since

the reminder letter was written five months after the expiration of ninety

days, the letter dated 25th July, 2022 is insignificant to the respondent.

Having heard the submissions from the counsel for the parties, the

issue for our determination is whether the applicant has made out his case

that the respondent failed to take essential steps in terms of rule 89 (2) of

the Rules. The rule provides:

"Subject to the provisions o f subrule (1), any other

person on whom a notice o f appeal was served or
ought to have been served may a t any time, either
 before or after the institution o f the appeal, apply to
the Court to strike out the notice o f appeal or the
appeal, as the case may be, on the ground that no
appeal lie s or that some essential step in the
proceedings has not been taken or has not been
taken within the prescribed tim e."

The import of the above Rule, is that any person on whom a notice of

appeal has been served, may apply to the Court to have such notice struck

out on any of the three grounds, that, one, no appeal lies, two, some

essential steps had not been taken and three, some essential steps had

not been taken within the prescribed time.

We have stated earlier that, after the ruling of the High Court which

was delivered on 2nd July, 2021, the respondent wrote a letter requesting to

be supplied with the copies of ruling, drawn order and proceedings on 13th

July, 2021 which was also served on the applicant through his counsel. This

fact is further depicted in paragraph 6 of the supporting affidavit. Later on,

before the expiry of thirty days prescribed under rule 83 (2) of the Rules,

that is, on 23rd July, 2021, the respondent lodged a notice of appeal.
 According to paragraph 12 of the supporting affidavit, the applicant

listed the essential steps which need to be taken by the respondent

towards lodging its intended appeal after filing the notice of appeal. These

are:

1) That, within thirty days o f the date o f decision in

respect o f C ivii Appeai No. 251 o f 2019\ the
respondent was to write to the Registrar o f High
Court to be supplied with certified copies o f ruling,
drawn order and proceedings for purpose o f
preparing the record o f appeai.

ii) That, after the lapse o f ninety days w ithout being

supplied with the requested documents, the
respondent was to write a rem inder letter to the
Registrar o f High Court within fourteen days
thereafter to be supplied with the requested
documents.

Hi) That, the respondent did not write a rem inder

letter within the prescribed tim e to be supplied with
the certified copies o f ruling, drawn order and
proceedings fo r purpose o f preparing the record o f
appeal.

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 iv) That, from the said 2$h July, 2022, when the
respondent file d the purported rem inder letter to the
Registrar, it is now five months which have lapsed,
and I have not been served with any other letter or
memorandum o f appeal."

Mr. Irungu forcefully argued that, pursuant to rule 90 (5) of the

Rules, the respondent ought to have written a reminder letter after expiry

of the ninety days. He pointed out that, the ninety days expired on 12th

October, 2021, and the respondent had up to 26th October, 2021 to write

the said reminder letter but it wrote five months after.

Rule 90 (5) of the Rules which has been heavily relied upon by Mr.

Irungu reads:

11Subject to the provisions o f subrule (1), the

Registrar sh all ensure a copy o f the proceedings is
ready fo r delivery within ninety (90) days from the
date the appellant requested for such copy and the
appellant sh all take steps to collect copy upon being
inform ed by the Registrar to do so, o r w ith in
fo u rte e n (1 4 ) d ays a fte r th e e x p iry o f th e
n in e ty (9 0 ) days . " [Emphasis added]
 Although we entirely agree with Mr. Irungu that home and dry rule is

no longer at the luxury of the intended appellant, with respect, we do not

subscribe to his argument that the respondent ought to have written a

reminder letter. Our reading of the above provision of the law, imposes an

obligation on the part of the Deputy Registrar to ensure that the requested

documents are ready for collection within ninety days from when the

application for the same was made, and for the intended appellant to go

and collect the same after being notified by the Deputy Registrar that they

are ready for collection. The bolded part, though it is not specifically stated

what needs to be done within fourteen days after expiry of ninety days due

to the disjunctive "com m d' and the use of the word " o f, reading

wholistically the entire provision of the law, we have repeatedly interpreted

it to mean that the intended appellant has a duty to make follow up within

fourteen days after the expiry of ninety days. For instance, in the case of

Edmund Msangi v. The Guardian Limited (Civil Application 337 of

2021) [2022] TZCA 743 (24 November 2022; TANZLII), we stated:

"... we gather that one, the provision is subjected

to sub-rule (1). It is not a stand-alone provision.
Two, the Registrar is required to ensure that the
copy o f proceedings is ready for delivery within
 ninety days from when the application for the same
was made and that the appellant is to collect the
said copy after being inform ed by the Registrar to
do so. Three, in case th e a p p e lla n t h a s n o t
re ce iv e d a n y n o tific a tio n from th e R e g is tra r to
c o lle c t th e s a id docum ents, th en he is
re q u ire d to fo llo w up w ith in fo u rte e n d ays
a fte r th e n in e ty d ays from h is a p p lic a tio n h a s
exp ired . "[Emphasis added]

See also: Arthur Kirimi Rimberia & Another v. Kagera Tea

Company Ltd. & 3 Others, Civil Application No. 364/01 of 2018

(unreported) and Monica Makungu v. Director of Education

Department, Archdiocese of Mwanza (supra).

According to SB-4 which is attached to the affidavit in support of the

application, the respondent had been making a physical follow up of the

requested documents to the court through IMMA's desk officer, one, Ms.

Frida Mtunzi. Given that the letter was attached by the applicant himself,

we take that he acknowledges the respondent's action of making physical

follow ups. Besides, the reminder letter was written prior to the filing of the

present application which suggests that the respondent did not sit back, as

argued by Mr. Irungu. It took actions by first making physical follows up, on
several occasions, on its request to the office of the Deputy Registrar, and

later on, in writing through a letter dated 25th July, 2022. Nonetheless, all

its efforts were turned out to be in vain.

In the case of Tanzania Bureau of Standards & Another v.

Charles Nyato (Civil Application 315 of 2021) [2022] TZCA 601 (29

September 2022; TANZLII), we were perturbed by the behaviour of the

Deputy Registrar despite several follows up made by the respondent. Here,

we wish to echo the same regarding the inaction of the Deputy Registrar

High Court, Dar es Salaam District Registry, that:

"It is very unfortunate that a ii that tim e o f the

respondent's foiiow upsf as it stands on record, not
oniy the Registrar did not notify him to coiiect the
requested documents, but aiso, he did not even in
w riting ask the respondent to continue waiting. This
was unusuai. In the absence o f it a ii therefore, we
give the respondent the benefit o f doubt and do not
expect this kind o f casuai running o f the courts'
registries to happen again."

Given the circumstances of the present application where the

respondent had applied in writing, that is, had written a letter to the High

12
Court requesting to be supplied with the copies of ruling, drawn order and

proceedings and made several follows up, physically and in writing, we find

that the respondent has taken all steps which are essential in filing its

appeal as required by the law.

Consequently, we find that the applicant's application is devoid of

merit. We therefore dismiss it with costs.

DATED at DAR ES SALAAM this 24th day of June, 2024.

B. M. A. SEHEL
JUSTICE OF APPEAL

P. F. KIHWELO
JUSTICE OF APPEAL

G. J. MDEMU
JUSTICE OF APPEAL

The Ruling delivered this 28th day of June, 2024 in the presence of

Mr. Phillip Lincoln Irungu, learned counsel for the applicant and Mr. Gaspar

Nyika, learned counsel for the respondent, is hereby certified as a true copy

of the original.