20101202 TZCA Mbeya

J1, i IN THE COURT OF APPEAL OF TANZA'i1'1A

AT MBEYA I (CORAM: MSOFFE, J.A., LUANDA, J.A., And ORIYO, J.A.) CIVIL APPLICATION NO. 3 OF 2009 I TUNSUME IBOLE ................................. i'••····•····•·•·•••········"["·············APPLICANT VERSUS ' , I STE PH EN MWANGULILO........................................................... RESPONDENT (Application to strike out the Notice of Appeal against the decision of the High Court of Tanzania at Mbeya) , I dated the 19 day of November, 2oqs th in · Miscellaneous Civil Appeal No. 1 of 2007 I '

RULING OF THE COURT 2nd December, 2010 , I MSOFFE, J.A.: ' ! This is an application brought under Rule 82 of the then Tanzania I I Court of Appeal Rules, 1979. The application which is supported by the I I ' affidavit of the applicant TUNSUME !BOLE is seekir)g an order of the i Court to strike out the notice of apeal filed on 19/1!1/2008 against the I Ruling of the High Court (Lukelelwa, J.) dated 13/11{2008 in Misc. Civil I ! Appeal No. 1 of 2007. I I In both the notice of motion ~nd in the oral submission of Mr. j Thomas Massawe, learned advocate .for the applicant, it is evident that I the application is premised on the ,fact that eversince the notice of I I 2 appeal was given on 19/11/2008 the respondent STEPHEN MWANGULILO has not sought for leave within the period of fourteen days prescribed under Rule 43(a) of the above Rules. Indeed, it is also apparent that after the respondent gave the ' notice on the aforesaid date the only step that he took in prosecuting the intended appeal was to apply for a copy of the Rul,ing and a Drawn ! Order vide his letter Ref. No. MISC. CIVIL.APPLICATION NO. 7/2007 dated 17/11/2008. At the hearing of the application Mr. Massawe essentially reiterated that the application should be allowed on the basis of the notice of motion and his written submission filed on 30/11/2016 in support of the application. On the other hand, the respondent was

agreeable that eversince I he filed the notice of appeal and applied for a copy of the Ruling and Drawn Order, he took no further steps to prosecute the I intended appeal. Actually, he went on further to tell us that as far as h~ is concerned, the matter between him and the applicant has since then been settled out of court. To this end, he had no objection if this application was to be granted. 3 As correctly submitted by Mr. Massawe, and conceded by the respondent, the respondent after filing the notice and applying for copies of the Ruling and the Drawn Order has not taken any further steps to execute the intended desire to appeal against the aboye Ruling. Seeking leave within the period of 14 days stipulated under Rule 43(a) above was one of the steps that he ought to have taken. In the light of the foregoing, there is merit in this application. We hereby allow it with the result that the notice of appeal filed on 19/11/2008 is struck out. Since Mr. Massawe is not inkisting on costs we make no order as to costs. DATED at MBEYA this 2nd day of December, 2010. J. H. MSOFFE

JUSTICE OF APPEAL B. M. LUANDA

JUSTICE OF APPEAL K. K. ORIYO

JUSTICE OF APPEAL