Mr. Kashumbugu, learned advocate for the applicant, Salim Omari, filed a Notice of
Motion under Rule 82 of the Court Rules, seeking to strike out Civil Appeal No. 137 of 2004 for failure to take an essential step,
that is, to serve the applicant with the record of appeal within the statutory period of 7 days as stipulated in Rule 90 (1) of the
Court Rules. He deponed at paragraphs 3 and 4 of his affidavit in support of the application, that although Civil Appeal No. 137
of 2004 was filed on the 28th October, 2004, the service of the record of appeal on the applicant was delayed for 32 days before it was served on the applicant
out of time on the 6th December, 2004. The delay, counsel submitted, rendered the appeal incompetent. Hence the present application seeking to strike out
the record of appeal under Rule 82 of the Court Rules because the record of appeal should have been served on the applicant within
7 days as provided for under Rule 90 (1) of the Court Rules.
Ms Sheikh, learned advocate for the respondent, opposed the application. She faulted
the applicant for omitting to cite Rule 90 (1) of the Court Rules as the enabling provision for striking out the time barred appeal.
She contended that the applicant had not provided his address for service as required under Rule 79 (1) of the Court Rules so the
record of appeal could not be served on him within time. She further contended that no address for service has been filed by the
applicant to date so the application to strike out the appeal is lacking in merit. Alternatively, counsel for the respondent appellant
argued, the Court Rules are handmaids of justice so the court should not be bogged down by technicalities. In that respect, failure,
or non-compliance with Rule 90 (1) of the Court Rules is not a material but a mere technical irregularity which is curable. She prayed
that the application be dismissed for lack of merit.
On the applicant’s address for service, Mr. Kashumbugu pointed out the said
address is on Pages 4, 6 and 7 of the record of appeal so the said address was available to the respondent at all times.
That the record of appeal had to be served on the respondent within 7 days from the
date of filing the same is clearly stated under Rule 90 (1) of the Tanzania Court of Appeal Rules, 1979. Rule 90 (1) states:
90. (1) The appellant shall, before or within seven days after lodging the memorandum of appeal and the record of appeal in the appropriate registry, serve copies of them on each respondent
who has complied with the requirements of Rule 79.
Counsel for the applicant observed that the applicant had filed his address for service
and the same is reflected on Pages 4, 6 and 7 of the record of appeal so the applicant’s address was available because he had
complied with the provisions of Rule 79 of the Court Rules. Having delayed in serving the applicant, the respondent should have sought
extension of time to serve the applicant. That the respondent did not do. Under the circumstances, the application has merit because
it is true that the applicant was served 32 days late which renders the appeal incompetent. I accordingly strike out Civil Appeal
No. 137 of 2004. Costs to the applicant.
DATED at DAR ES SALAAM this 18th day of November, 2005.
