karori chogoro vs waitihache marengo 2021 tzca 281 5 july 2021

karori chogoro vs waitihache marengo 2021 tzca 281 5 july 2021

The preliminary objection on late service does not raise a pure point of law as the date of service is unascertained and disputed, requiring evidence. The defective decree is a valid objection, but in the interest of justice and under the Overriding Objective Principle, the appellant is allowed to file a supplementary record with a valid decree instead of striking out the appeal.

Citation
karori chogoro vs waitihache marengo 2021 tzca 281 5 july 2021
Parties
Appellant: Karori Chogoro; Respondent: Waitihache Merengo
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
5 July 2021
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Before Hearing of Appeal
Outcome
preliminary objection overruled
Legal Topics
Service of Documents, Defective Decree, Preliminary Objection, Overriding Objective Principle
Source Language
English
Civil Procedure Land Law Service of Documents Defective Decree Preliminary Objection Overriding Objective Principle

Case Brief

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Parties

Karori Chogoro

Appellant

Waitihache Merengo

Respondent

Procedural Posture

Civil Appeal / Ruling on Preliminary Objection Before Hearing of Appeal

Legal Issues

  1. 1 Whether the appeal is incompetent due to late service of memorandum and record of appeal
  2. 2 Whether the appeal is incompetent due to a defective decree in the record of appeal

Ratio Decidendi

The preliminary objection on late service does not raise a pure point of law as the date of service is unascertained and disputed, requiring evidence. The defective decree is a valid objection, but in the interest of justice and under the Overriding Objective Principle, the appellant is allowed to file a supplementary record with a valid decree instead of striking out the appeal.

Court Disposition

preliminary objection overruled

Orders

  • Appellant to lodge a supplementary record of appeal containing a valid decree within thirty days from the date of delivery of this ruling.
  • Hearing of the appeal is adjourned to a date to be fixed by the Registrar.