mohamed mpili vs nassoro kaliyae 2009 tzhc 229 4 may 2009

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM PC CIVIL APPEAL NO. 141 OF 2003 Originating from the decision of the District Court of Kilosa in Civil Appeal no 42 of 1997 MOHAMED MPILI ............... APPELLANT VERSUS- NASSORO KALIYAE..*...... RESPONDENT Date o f Last Order : 3/3/2009 Date o f Ruling : 4/5/2009 RULING* SHANGWA, J. On 6th April, 2005, thjs Court dismissed the Appellant’s appeal for want of prosecutjgn., Counsel for the Appellant filed v a chamber application for* extension of time to file an application to set aside the dismissal order and in the same chamber application requested the court to set aside the dismissal order and hear the appeal interpartes. In my Ruling delivered on 13th December, 2007, I stated that it was not proper for the Appellant to combine or bring in the same chamber summons an application for extension of time to apply for setting aside the dismissal order with an application for setting aside the dismissal order. I put it very clear that an application to,^et aside the dismissal order has to be filed after an application for extension of time has been heard and granted. Consequently, I held that an application to set aside the dismissal order of~this Court dated 6th April, 2005 was pre-mature. This means I did not entertain it. What f i- I did is that I only granted l^js application for extension of time to file an application to set it aside and ordered that the application to set it aside should Jp^filed within a month from the date of the Ruling namely 13th December, 2007. Now, instead of filing an application for setting aside the dismissal order as ordered by tlie Court, the Appellant’s Counsel Mr. Johnson Jasson lile ^ a Memorandum of Appeal and stated that he had done so pursuant to the order of the v:.>’ High Court dated 13th December, 2007. On 24th September, 2008, he prayed the Court to argue his appeal by way of written submissions and his prayer was granted. In his written submissions, the Respondent put it to the attention of this Court that this appeal is improperly before it because there Vw*- was an appeal filed by the same Appellant which was dismissed by this Court for- ^y^t^of prosecution and that no application to set it aside: feas .been made and granted despite the fact that on 13th December, 2007, this Court allowed the appellant to file an application to set it aside within a month from that date. He prayed this Court 'r to dismiss his appeal with costs for being improperly before this Court. In my view, I agree w ith . the Respondent that the Appellant's appeal filed on,: 1ljh ^January, 2008 is improperly 'V before this Court. I wish to.W .add < i that it is misconceived as well. The order of this Court dated 13th December, 2007 was not an order for extension of time to appeal as there was no application to that effect. The application upon which the said -r ; •', .■I . iv ./ V -J -v‘ order was issued is an application-for extension of time to file ,cifd c an application for setting aside the dismissal order of the Appellant’s appeal issued on 6th April, 2005. Due to the fact that the dismissal order of the Appellant’s appeal has yet to be set aside and as the Appellant’s appeal filed on 11th January, 2008 is improperly before this Court and is t' misconceived, I hereby strike it out with costs. Delivered in open Court this 4th'May, 2009 in the presence of Mr. Ogunde for Mr. Johnson for the Appellant. ■' <C //I x ■ 7* . ' c/ | A-Shangwa ^ JUDGE 4/5/2009 v:1