200160520 tzhc arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA MISC. CIVIL APPL NO.224 OF 2015 (Originating from Land Case No.17/2008 High Court of Tanzania district Registry of Arusha t Arusha) MOSSES KING'ORI ............. ,........................ APPLICANT Versus LONING'O SANARE ................................ RESPONDENT RULING Date of last Order: 06/5/2016 Date of Ruling: 20/5/2016 BEFORE: S.C. MOSHI, JUDGE. The application is brought under Order 7 sub Order (1) and (2) of the Advocates Remuneration Order, 2015, GN No.264 published on 17/7/2015. The applicant is praying for the following orders:- 1. The Honourable Court be pleased to quash the dismissal Order in the Bill of Costs No.46 of 2013 which was given by the Deputy Registrar on 21/10/2015 and order that the same be fixed for hearing and give necessary order(s) which the court deem fit. 2. Costs of this application o be in the course. At the hearing of the application, Mr. Ruge advocate appeared for the applicant whereas the respondent was represented by Dr. Mchami, advocate. 1 The application was disposed of by way of written submissions. Mr. Ruge submitted inter alia that they filed a Bill of costs application No.46 of 2013 on 20/08/2013 which was filed following an order granting costs in Land Case No.17 of 2008. The respondent applied for adjournment sine die of hearing of Bill of Costs No. 46 of 2013 pending the hearing of his intended appeal to the Court of Appeal of Tanzania. The application was granted. However, on 21/10/2015 the Deputy Registrar decided to dismiss it saying that he has no jurisdiction. Mr. Ruge urgued further that, the Advocates Remuneration Order 2015, GN 264 Order 4 allows a decree holder to file a bill of costs within sixty days. Also that, order 68 of the same law gives power to the Taxing Officer to adjourn the bill of costs from time to time while awaiting the intended appeal by the respondent to the Court of Appeal of Tanzania currently the intended appeal is no longer there as he was not granted leave. Hence, for the Bill of costs to proceed to hearing, it has to be restored as there was no reason to dismiss it. Dr. Mchami responded among other things that: 1st the Ruling which is impugned is not attached. 2ndly the applicant has not stated any valid reason why the Deputy Registrar was wrong. The Deputy Registrar acted correctly when he dismissed the Bill of Costs No.46 of 2013 because his court had no jurisdiction to entertain a matter which was based on a judgment which was being questioned by way of appeal process in the Court of Appeal of Tanzania. I have considered both sides' submissions. The order which is. subject of the application reads thus:- "Since the Respondent has lodged Notice of Appeal to Court of Appeal of Tanzania, the jurisdiction of this Court in 2 this matter has been ceased. The matter is hereby dismissed for want of jurisdiction." The order was made upon receiving information from Decree Holder's Advocate address to the court. The order was made on 21/10/2015. The Bill of costs, i.e. the Taxation Cause was filed on 20/8/2013. It is not revealed when the said Notice of Appeal was lodged, however it's obvious that it was lodged after the Taxation cause had already been filed. I agree with Mr. Ruge that the court did not cease to have jurisdiction as it is indicated in the order. The court i.e. the Deputy Registrar had to stop proceeding with the case before him; following the lodging of the Notice of Appeal to Court of Appeal. The Deputy Registrar would have rejected to entertain the application if it was brought after the Notice of Appeal had been lodged, but not to dismiss it for lack of jurisdiction because the Deputy Registrar is vested with jurisdiction to entertain Taxation causes. Thus in the circumstances of this case, the proper procedure was to adjourn the cause, because at this stage the appeal is already initiated before the Court of Appeal by filing the Notice. That said, I allow the application, I quash the dismissal order which is dated 21/10/2015. I restore the bill of costs. I order that the proceedings should proceed from where it ended. Each party to bare its own costs. S.C.~I JUDGE 20/5/2016 3