MARY KIMARO v KHALFANI MOHAMED 1995 TLR 202 (HC)

 

MARY KIMARO v KHALFANI MOHAMED 1995 TLR 202 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mwaikasu J

Misc Civil Case No 83 of 1992 E

July 28, 1995

Flynote

Civil Practice and Procedure - Appeals - Application for leave to appeal out of time -

Copy of proceedings not received - When limitation period begins to run. F

-Headnote

This was an application for leave to appeal out of time. The reason advanced for the

application was that though a copy of judgment had been supplied, a copy of G the

proceedings was yet to be supplied and thus it was not possible to frame a sound

memorandum of appeal. The application was resisted on the ground that the applicant

did not get a copy of the proceedings because he had not paid for it.

Held:

(i) A copy of proceedings and a copy of judgment are necessary for the

purposes of framing a sound memorandum of appeal; H

(ii) It is from the time of supply of both such documents that the limitation

of time for appeal begins to run.

Case Infomation

Order accordingly.

Cases referred to:

(1) Hasham Harji v. Katocha [XIX], KULR 20 I

1995 TLR p203

MWAIKASU J

Marandu for the applicant. A

Kinguji for the respondent.

[zJDz]Judgment

Mwaikasu, J:

This is an application for leave to appeal out of time. It has been contended by Mr B

Marandu, learned counsel for the appellant that upon delivery of the judgment of the

lower appellate court on 7 May 1992, on the same day the lower appellate court was

notified of the intention to appeal, copied to the counsel for the respondent, and such

notice was received on the same day. A copy of judgment C of the lower court was

received on 3 July 1992, but no copy of proceedings was then supplied, for the reason

that it had not been typed. That is also confirmed by the record of the lower appellate

court, as per endorsement made on Mr D Marandu's letter dated 3 July 1992, on the

same day to the effect that copies of the proceedings and judgment of the primary

court should be supplied first and then district court proceedings should be typed and

supplied at the earliest. That then, it has been contended, made it difficult for the

appellant to frame a proper and sound memorandum of appeal. Mr Marandu further

contended that on 3 August 1992 E another reminder was sent to the lower appellate

court, requesting the supply of the copy of proceedings but the same had not yet been

supplied even by 10 August 1992 when this application for leave to appeal out of time

was filed. That again appears to find support in the record of the lower appellate

court, as per endorsement on Mr Marandu's letter of 3 August 1992, whereby the DM

minuted to F the civil section that they should ensure that such request is met after

payment of necessary fees. Such endorsement is also dated 3 August 1992. Mr

Marandu further contended that by the time this application was being presented

they had not yet been supplied with such copy of proceedings to enable them to

formulate G their grounds of appeal and that it was difficult to do so on the basis of

the copy of the judgment alone as he was not present when the appeal was argued.

On the above grounds the learned counsel prayed for an extension of time to run to

such time that the copy of proceedings shall have been supplied. H

That has been opposed by Mr Kinguji, learned counsel for the respondent on the

grounds, inter alia, that the failure of the appellant to have copy of proceedings was

due to the fact that he demanded the same through correspondence when he had not

paid for them. He then referred this court to the case of Hasham Larji v I

1995 TLR p204

MWAIKASU J

A Kotecha (1) where it was decided that it is not sufficient to simply apply for copy

of proceedings and then rest without taking any further action to procure the same.

As rightly contended by the learned counsel for the appellant, it is evident from the

facts as observed above that the case cited before this court by the learned B counsel

for the respondent as authority for defeating this application is clearly distinguishable

from the facts of this case. For it is evident as also noted from the record of the lower

appellate court that by 3 August 1992 such copy of C proceedings had not yet been

ready for the supply to the appellant, despite frequent reminders. The appellant

cannot in the circumstances be held to be responsible for the delay in obtaining copy

of proceedings from the lower appellate court. It is the lower appellate court which

has contributed to such delay.

D No doubt, copy of proceedings along side with copy of judgment are necessary for

the purposes of framing a sound memorandum of appeal. It is from the time of the

supply of both such documents that the limitation of time for appeal runs.

Accordingly I find that this application has merit. It is accordingly allowed and the

appellant is hereby granted extension of time of his appeal to run from the date he E

receives the copy of proceedings from the lower appellate court. It is, however, noted

that such copy of proceedings have now been typed. The appellant should therefore

arrange at the earliest to procure them on payment of the necessary fees.

Order accordingly. F

1995 TLR p205

A