jumanne josiah vs ukerewe saccos limited 2023 tzca 17806 7 november 2023

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWARIJA. J.A.. KENTE, J.A., And MASOUD. J.A.^ CIVIL APPLICATION NO. 246/08 OF 2022 JUMANNE JO S IA H .............................................................................. APPLICANT VERSUS UKEREWE SACCOS LIM IT E D ..................................................... RESPONDENT (Application to strike out Notice of Appeal arising from the decision of the High Court of Tanzania at Mwanza) (Ismail, J .) dated the 29th day of July, 2020 in Labour Revision No. 26 of 2019 RULING OF THE COURT 7th November, 2023 MWARIJA, J.A.: This application was fixed for hearing on 6/11/2023. Whereas the applicant appeared in person, unrepresented, the respondent was represented by its Board Chairman, Mr. Boniphace Msafiri Mnafuba. However, hearing could not proceed because the said respondent's representative did not have the record of the application. He told the Court that, the record was in the possession of the advocate who was representing the respondent. For that reason, we adjourned the hearing to this day so that he could collect the record from the said advocate. When the application was called on for hearing today, the applicant appeared but the respondents' representative defaulted to enter appearance. Thus, upon the prayer by the applicant, we proceeded to hear the application in the absence of the respondent because its representative had the notice of today's hearing. In his submissions, the applicant urged us to strike out the notice of appeal filed on 27/7/2020 on account that, the respondent has not taken essential steps to institute the intended appeal. He adopted his affidavit and written submissions in which, he essentially states the background of the proceedings and the decision giving rise to the notice of appeal, the subject matter of the application. Having gone through the written submissions and the applicant's affidavit as well as the respondent's affidavit in reply, we are satisfied that the respondent has not taken any essential steps to lodge the intended appeal. In the affidavit in reply sworn by its advocate, Mr. Akram Adam, the deponent merely disputed the facts stated in the supporting affidavit but nowhere has it been shown that, the respondent has taken any step to file the intended appeal. According to the copy of the Registrar's letter dated 16/2/2022 which the applicant has annexed to his written submissions, the copies of proceedings, judgment and decree were ready for collection as from that date but the respondent did not collect them for further steps. Although in its affidavit in reply, the deponent contend that it did not receive the letter, it was bound to make a follow-up after 14 days of the expiry of 90 days from the date when it applied for the copies, which was on 8/7/2020. This is in accordance with rule 90 (5) of the Tanzania Court of Appeal Rules, 2009 (the Rules). In the circumstances, we agree with the applicant that the respondent has failed to take essential steps and consequently, in terms of rule 89 (2) of the Rules, we hereby strike out the notice of appeal. DATED at MWANZA this 7th day of November, 2023. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL I certify that, this is a true copy of the original.