andrew mwakalukwa vs aggrey mwambije 2003 tzhc 107 21 november 2003

IN THE HIGH COURT OF TANZANIA iSJSSSSL MISC. CIVIL AIFEAL NO. 20 OF 2001 (From the decision of/the District Court of Rungwe,District at Tukuyu in Civil Appeal. No*63 of 1997 and Tukuyu Urban Primary Court Civil Case Noo k7 of 1997) ANDREW M W A K A L U K W A : ;:::::::::::::::::::::::::::: sAITELLANT VERSUS AGGREY J 4 W A M B I J E : : E E S I O N D E N T Jjgj g MACKANJA, J. The appellant brought a’suit before the Tukuyu Urban Primary Court claiming a liquidated sum of shs.32^,114.00 from the respondent. He was awarded a sum of shs.100,000o00 as damages. That decision was set aside on appeal before the Rungwe District Court sitting at Tukuyu in terms of that Court*s Civil Appeal No.63 of 1997* Each party was directed-to pay own costs# In spite of that order the appellant, who had long since expired, but through the administrator of his estate, filed a bill of costs in the sum of shs.687 ,030.00 which was taxed as presented. The present appellant did not appeal, instead he instituted‘ah application for review. It is against the taxing master*s decision that this appeal has been brought. So Mr. Mwangole, learned counsel for the appellant, prays that his client be given his bidding. \ Mr. Mbise, learned counsel for the respondent has submitted that the proper way to challenge taxation of costs is not by way of an appeal. It ought to be by way of a reference to the High Court. He did not tell us under what procedural law the appellant ought to have done so. Mr. Mbise is right all the same; the procedure is laid down under the Advocates Remuneration and Taxation of Costs (Amendment) Rules, GN 89 and GN 159 made under the Advocates Ordinance, Cap® 9« Instead of appealing, therefore, e*/2*. the appellant wus entitled only to fiJLe a reference* This Court has made several decisions on this matter and I cite only two oases for clarification: Maximilian Rwabulala v« Emilian Kalugala fl9&27^.L.Ri 2 and Daudi Masumbuko *> v« Eliabu D» Mwisa & Another- (HC) Misc0 Civil Appeal No*2 of 2002 (Mbeya Registry)- Unreported. , I From the above observations I hold that the appeal is incompentent and I it is accordingly struck out with costs# sgd: J.M. MACKANJA JUDGE 14/^/2003 Date: 21/11/2005 ‘ Coram: S. Bongole, DR 1 For Appellant: Mr. Mbise for - present For Respondent: Mr. Mwangole for - present B/C! Mrs. S. Kasubiri Delivered. sgd: B. BONGOLE, DR 21/11/2003