20060711 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT MWANZA MISC.CIVIL APPL.NO. 12 OF 1998 · {Arising from HC. Civil Appeal No.37 of :J.991 and the Original ' Civil l.,as·e No.16 of 1982 of the Resident Magistrate's Court of Mwanza S.N.A Wambura - Esq. Resident Magistrate} HAJI ABDALlAH UKWAJU ......................................APPELLANT Versus KHIMJI MOTORS .............................................. RESPONDENT 11/07/2006 & 11/07/2006 RULING RWEYEMAMU,l: On 21/07/1997, High Court Civil Appeal No.37/91 was struck out for want of prosecution. The applicant Mr. Kabonde seeks leave of this court to re-admit that appeal out of time. The respondent also represented by Counsel Mr. Rugaimukamu opposes it. Grounds for the application are contained in the applicant's affidavit and oral arguments by counsel. They are mainly that his non appearance was not caused by negligence on his part; he was made to believe that no administrator had been appointed following the defendant's death; a fact disclosed to court by the letter from the son of the deceased, annexure A to the application; and further that a court clerk informed him that proceedings had been stayed by th~ court pending appointment of the administrator. After waiting a long period, he called at the civil registry on 1/7/98, only to learn of the dismissal order. He immediately commenced the present action. i' Mr. Rugaimukamu refutes those arguments; submits that the case was dismissed due to the appellant/applicant's failure to make a follow up; that as it is a duty of parties to make a follow up of their cases which act the applicant failed to do, the application should be dismissed. I have carefully considered convincing arguments made by both counsels. My decision however, is based on what is revealed in the court record. The record reveals the following:- 1. The case was last mentioned in the presence of parties' advocates on 26/8/93, when an order was made for it to be heard on 30/11/93. 2. On 30/11/93, a coram was recorded in the case file and then canceled with no entry made. 3. On 13/11/95 the case was mentioned before the District Registrar in the absence of parties, and the following order was made: "Hearing 2 7/2/96 parties to be notified/F 4. No other entry was made until the appeal was fixed for mention on 21/7/97, the day it was struck out. In view of that background, what transpired in the case proceedings finally leading to its dismissal can not solely be blamed on the applicant. I do not believe that requirement to make a follow up by parties includes reminding the court registry to schedule cases. A follow up must mean parties keeping track of the case as per court 2 cause list. In this case the court itself holds a share of blame in that it made no notification to the parties of the hearing date as per its order of 13/11/95, an order made following the court scheduling the case for mention after a long lapse of time - almost two years. It would be unjust to penalize the applicant whose case was struck out for reasons partly to be blamed on the court. In view of the above reasons, I find it fair and just to grant this application. This application is granted with no order as to costs. Sgd: R. M. RWEYEMAMU JUDGIE 11/07/2006 Date: 11/07/2006 Coram: Hon. R. M. Rweyemamu, J For Applicant: Magoiga Adv. - Absent in another court Applicant present in person For Respondent: Rugaimukamu Adv. B/Clerk: J. Lwiza Court: Ruling delivered this 11/7/2006 as per coram above. Applicant: I pray that my advocate be present before other orders are made. Order: Mention 10/8/2006 Sgd: R. M. RWEYEMAMU JUDGE 11/07/2006 3