kobil t ltd vs mariam kisangi ta mnafu traders 2007 tzca 191 29 march 2007

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 38 OF 2006 KOBIL TANZANIA LIMITED............... APPLICANT VERSUS MARIAM KISANGI t/a MNAFU TRADERS................................. RESPONDENT RULING Date of final submission: 21.3.2007 Date of Ruling 29.3.2007 MJASIRL J. This is an application for leave to appeal to the Court of Appeal of Tanzania against the ruling of this court (Luanda J) delivered on January 1, 2007 (Misc. Commercial Application No. 38 of 2006). The Application is made under section 5 (1) c of the Appellate Jurisdiction act 1979 cap 14 [R.E.2002]; Rule 43(a) of the Tanzania Court of Appeal Rules Cap 141 [R.E.2002]. The application is supported by the affidavit of Rosan Mbwambo, Advocate for the Applicant. The Respondent opposed the 1 application. Mr. Mbwambo Advocate represented the Applicant and Mr. Khamis Advocate represented the Respondent. An application was filed by the applicant for interlocutory orders without a plaint. This led to a preliminary objection by the Respondent on the ground that no suit was filed. Hon. Luanda J upheld the Respondent’s preliminary objection on the ground that an application for the interim mandatory orders/reliefs and other orders could not be entertained because there is no pending suit as provided under Order XXXVII Rule I and section 68 of the Civil Procedure Act. In order for the application for leave to appeal to the Court of Appeal to be granted the following factors must be present: 1. The proposed appeal stands reasonable chances of success; or 2. Where but not necessarily the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal. The factors outlined above were set out in Civil Reference No. 19 of 1997, Harbani Haji Mosi and another V Omar Hilal Seif and another (unreported) Lugakingira J.A as he then was. 2 Upon reviewing the affidavits and submissions of the parties I find no basis in granting the application for leave in the absence of the factors outlined above by Lugakingira J.A as he then was. In view of the prevailing circumstances leave to appeal to the Court of Appeal of Tanzania is hereby refused. The Application for leave to appeal is hereby dismissed with costs. SAUDA MJASIRI JUDGE MARCH 28, 2007 Delivered in Chambers this 29th day of March 2007 in the presence of Mr. Mbwambo Advocate for the applicant and Mr. Khamis, Advocate for the Respondent. SAUDA MJASIRI JUDGE MARCH 29, 2007 908 words j r,-.-t.. r' ■ i$ ' tri:? and correct . it Jtir to J Sign ___________ _— ‘ R.e<mtrar Comqierciil Court Dsm. ____ 3