Mr. Rwebangira, learned advocate for the applicant briefly submitted to the effect that within sixty (60) days of the date when the
notice of appeal was filed in court, a memorandum and record of appeal should be filed unless the exception to Rule 83 (1) of the
Court Rules, comes into play. He added that in the instant application, the respondent could not take advantage of this exception
because the respondent did not apply for a copy of the proceedings in the High Court within thirty (30) days of the date of the decision
against which it is desired to appeal and a copy of it was not sent to the applicant herein. The learned advocate cited two decisions
of this Court, Stephen Wassira v. Joseph Warioba (1997) TLR 205; and Mrs. Kermal v. The Registrar of Buildings and Miss Hawa Bayona (1998) TLR 199.
The respondent, one Hamis Njama filed his counter-affidavit. Paragraph 4 reads as
follows ?
e4. The contents of paragraph 4 are vehemently disputed to the effect that the respondent upon determination of the matter asked for
a copy of the ruling from the court clerk and it was duly given to him without any conditionality. So the question of writing a letter
was uncalled for since the respondent was given the copy, and in any case if the requirement of writing the letter was mandatory
then the respondent was never informed of the same. Further the respondent avers that this is a delaying tactic being employed by
the applicant at the expense of justice.h
The respondent had nothing to add in elaboration of his affidavit in opposition to
the application.
The essence of this application is that the respondent has not instituted an appeal
before this Court as required by the Court Rules. Under Rule 83 of the Court Rules, an appeal must be instituted within sixty (60)
days reckoned from the date of filing of the notice of appeal. It is not in dispute that the respondent filed notice of appeal on
the 20.4.2004. The intended appeal should therefore have been instituted on or before the 19.6.2004. Since the appeal was not instituted
within sixty (60) days of the filing of the notice of appeal, it was necessary for the respondent to rely on the exception to sub-rule
(1) of Rule 83 which is to the effect that in computing the sixty (60) days, the time taken to obtain a copy of the proceedings from
the Registrar shall be excluded. In addition, the respondent had to show that he had sent to the applicant herein a copy of his letter
to the Registrar asking for a copy of the proceedings.
It is evident from the affidavit evidence before me that the exception to Rule 83
is not available to the respondent. There is no evidence that he wrote a letter to the Registrar asking for a copy of the proceedings.
Since this essential step was not taken, the appeal should have been instituted within the prescribed sixty (60) days. The notice
of appeal was filed on the 20.4.2004 and nothing essential has been done to-date to prosecute the appeal.
I therefore allow this application and order that the notice of appeal dated 20.4.2004
be and is hereby struck out with costs.
DATED at DAR ES SALAAM this 9th day of September, 2005.
