20020209 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA t • - AT DAR ES SALA.AM PC CIVIL APPEAL No,171 OF 2000 SUD I S • ALLY KIPETIO & 4 OTHERS • APPELLANTS VERSUS BAKARI ALLY MWELA - RESPONDENT JUDGMENT '!1HEMA, J • I 411 ' ,, •• $ti~i S. Ally Kipetio and 3 others have filed an appeal to thi& Court .. . ,. ~he judgment of the Tameke District Court in Civil Appeal No.9C>l99 ,,igainst . . . ~rigi,na:ted from. Probat-e oo.uee Wo.300 of 1996 at the Temek& PM.maxjt court. F:i,l,e ~ a of appeal have been raised by the appellants, namely; ( i) error in law and facts by the District in ordering retrial of t~e case by Primary Court without according the appellao.ts the right to be heard; (ii) error in law ay the District Court in failing to allow the appellants to be heard on the findings of Bakwata, error in la,w and fa.ct by t,he District Court when it held that the appellants-were born out of wedlock, hence ille,gimat.e, . . (iv} error in law and fact as the District Court failed to tak& 110te on the existence of two conflicting deoisions .on the queetion of the illegl.tima.cy or o-therwis~ of the appellants. With-leave of the Court the parties who are represented by counsel filed written submissions. In his submission Mr Mtanga learned Counsel for the respondent Bakari Ally Mwera pointed out at the outset that the appeal was time barred and has been filed without leave of the Court. It is contended by Mr Mtanga learned advocate that the decision in Civil Appeal No.90/99, th~ subject of appeal, was given on 1/8/2000 while the appeal was filed onn 20th November, 2000 1 hence out of time. Since the question qf limitation is an important point of law it is imperative that I address it first and foremost. Indeed as pointed out by the learned advocate for the respondent the record shows that the appeal was filed in this court on 20th November, 2000 after 109 days from the date of judgment i.e 1/8/2000. However the record further shows that the judgment was certified on 15/8/2000 hence ready for collection aa of that date, this would oonsititute a period of 94 days after judgment. • - 2 In terms of the provisioB of Section 25(1)(b) of the Magistrate•s Courts Act No.2/1984 an appeal has to be preferred to the High court withih thl:l'ty days.after the date of the decision or order, provided that the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired. Invariably such extension is made tipon ap~lication by a party. As corree:tl.y submitted by Mr Mtanga learned advocate the appeal is indeed t :i.me barred for having ~n filed 94 days out of time and without leave of the Court. It is to be dismissed with costs for having being hopelessly out of time. It is eo ordered. s. Ihema. jtJDGE Court: ~:x - Judgment delivered today 30/01/2002 before the parties. Ie Mr Mtanga for the respondent and the appellants in person. Right of appeal is open to the parties~ ) .,. - j; { Lx. \;~,·/~ s~ Ihema JUDBE 9/2/2002.