20160330 tzhc arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA \ _,., (DISTRICT REGISTRY) AT AR.USHA. I MISC. CIVIL APPL. i NO. 109 OF 2015 ( Originating from c/f Taxation Cause No. 74/2014) BARNABAS MARGWE ...... 1 ••••••••••••••••••• APPLICANT l

VERSUS ! KELA LAGO. ■■■■■■■■■■■■■ 1111 ■ ■■■■■ I I ■ 111 ■ ■■ I ■ •• RESPONDENT HON. W. R. MASHAURI -T /0. _3/3/2016 & 30/3/2016 I RULING. The chain of this application! to set aside the order of striking out I taxation cause No. 74 of 2014 ·is hinged from the High Court Civil Application No.78/2014 which .had been filed in court by the ! respondent in this application Keha Lago. The applicant in this I application Barnabas Margwe and two others were respondents. On I 15/7/2014 the said appeal was struck out with costs. Following that I . order of the court the applicant Barnabas Margwe filed Taxation 1 Cause No. 74 of 2014 which on 21/4/2015 was also struck out for I_,..-, want of prosecution. When he woke up again the applicant in this application has come to court seeking for an order of the court of striking out taxation cause No. 74 of 2014. In his affidavit he filed in court, the applicant has deponed inter alia that, the failure to attend in court on 21/4/2016 was not that of is own making. That, before 18/3/2015 was unwell. On 18/3/2015 he went to Hospital for medical checkup whereby he was found with fever, headache accompanied with vomiting and such situation persisted up to 22/3/2015 when he got relief. To back up his allegation, the applicant has attached to his affidavit an outpatient record card for easy of reference. The issue is whether, the failure by applicant

to attend his case in court when it was set mention on 21/4/2015 was not that of his own making. In his sworn affidavit the applicant states was sick and before 18/3/2015, he went to Karatu Di1strict Hospital where he was treated. 2 According to the contents of the out - patient Record card, was released on 22/3/2015 upon being found "doing well, improving. He was given an exemption from Duty (ED) for two days. This means was duty bound to resume normal duties on 25/3/2015. Upon gone through the court record in Taxation cause No. 74 of 2014. I have gathered that, on 8/4/2015 the applicant was present in . court. The respondent was not present. The application was set for mention on 21/4/2015 but he did not enter appearance the consequence of which the application was stuck out. From 25/3/2015 when the applicant completed his two days Exemption from Duty (ED) to 21/4/2015 when his application was struck out is almost 26 days had lapsed. He cannot therefore be heard saying that he was sick when his case appeared in court on 21/4/2015. In his sworn affidavit therefore, the applicant has lied on oath. This application to set aside the order of striking out Taxation cause No. 74 of 2014 is devoid of merit. It is hereby dismissed. No order as to costs is made. 3 SGD W. R. MASHAURI

T ING OFFICER 30/3/2016 Ruling delivered in court in the presence of the applicant this 30/3/2016. Right of appeal explained. OF ~:, ' ~- /': '\; i.-:::ls-..... ' W. R. MASHAURI :z:: '\,ff,' ~f· TAXING OFFICER 30/3/2016 4