domina kagaruki vs farida f mbarak others 2021 tzca 595 18 october 2021

domina kagaruki vs farida f mbarak others 2021 tzca 595 18 october 2021

Service of the notice of appeal on an advocate who did not represent the applicant in the relevant High Court proceedings is not valid under rule 84(2) of the Tanzania Court of Appeal Rules. As neither the applicant nor her advocate in Miscellaneous Land Application No. 612 of 2017 was served, the respondents failed to take essential steps towards prosecution of the appeal, and the notice of appeal must be struck out.

Citation
domina kagaruki vs farida f mbarak others 2021 tzca 595 18 october 2021
Parties
Applicant: Domina Kagaruki; 1st Respondent: Farida F. Mbarak; 2nd Respondent: Farid Ahmed Mbarak; 3rd Respondent: Elius A. Mwakalinga
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
18 October 2021
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice of Appeal
Outcome
Application allowed; notice of appeal struck out
Legal Topics
Service of Notice of Appeal, Essential Steps in Appeal, Representation by Advocate
Source Language
English
Civil Procedure Appellate Practice Service of Notice of Appeal Essential Steps in Appeal Representation by Advocate

Case Brief

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Parties

Domina Kagaruki

Applicant

Farida F. Mbarak

1st Respondent

Farid Ahmed Mbarak

2nd Respondent

Elius A. Mwakalinga

3rd Respondent

Procedural Posture

Civil Application / Ruling on Application to Strike Out Notice of Appeal

Legal Issues

  1. 1 Whether service of notice of appeal on an advocate who did not represent the applicant in the relevant High Court proceedings is valid under the Tanzania Court of Appeal Rules
  2. 2 Whether failure to serve the notice of appeal on the proper party or advocate invalidates the notice and precludes reliance on the proviso to rule 90(1)

Ratio Decidendi

Service of the notice of appeal on an advocate who did not represent the applicant in the relevant High Court proceedings is not valid under rule 84(2) of the Tanzania Court of Appeal Rules. As neither the applicant nor her advocate in Miscellaneous Land Application No. 612 of 2017 was served, the respondents failed to take essential steps towards prosecution of the appeal, and the notice of appeal must be struck out.

Court Disposition

Application allowed; notice of appeal struck out

Orders

  • The notice of appeal lodged by the respondents on 07.06.2019 is struck out.
  • The first and second respondents are to pay costs.