20130726 TZCA Iringa

,4{A3: $~//c,t;J //Or.I- ✓ ~ LG--twE: IN THE COURT OF APPEACOF TANZANIA AT IRINGA (CORAM: RUTAKANGWA, J.A., LUANDA, J.A., And MJASIRI, J.A.) CIVIL APPLICATION NO. 4 OF 2011 UNILEVER TEA (T) LTD ............................................................... APPLICANT VERSUS ZACHARIA MWATIMWA .............................•............................ RESPONDENT (Application for leave to appeal to the Court of Appeal from the Decision of the High Court of Tanzania at Iringa) (Mkuye, J.) 'dated the 2 nd day of December, 2010 in (DC) Civil Appeal N.o. 9 of 2009 RULING OF THE COURT 26th & 30th July, 2013 MlASIRI, l.A.: Before us is an application by Notice of Motion brought under Rule 45 (b) of the Tanzania Court of Appeal Rules 2009 (the Court Rules). The orders being sought are reproduced as under:- (a) The Court be pleased to grant leave to appeal to the Court on the grou_nd t)lat the applicant was aggrieved by the decision of the High Court and that his application for leave to appeal which was mad~ to the High Court was refused. 1 (b) The costs of and incidental to this application abide by the result of the intended appeal. At the hearing of the application the applicant was represented by Mr. Basil Mkwata, learned advocate and the respondent appeared in person and was unrepresented. The background to this application is that the applicant applied for leave in the High Court before Kihio, J. However the application did not proceed on merit and was struck out because the applicant cited wrong provisions of the law rendering the application incompetent. Mr. Mkwata on his part asked the Court to grant him leave to appeal to the Court of Appeal as his application has been refused by the High Court. He argued that he was justified to rely on Rule 45 (b) of the Court Rules as his application was rejected by the High Court. The· Respondent, being a layman and not being represented by an attorney simply requested the Court to rely on his counter affidavit filed in Court. 2 The law is settled on applications for leave to this Court. An application for leave to appeal has to be filed in the High Court first and can only be filed in the Cpurt of Appeal when leave has been refused by the High Court. The position of the law is clear and unambiguous. Rule 45 of the Court Rules provides as under:- "(a) Where an appeal lies with the leave of the High Col.,frt, application for leave may _be made informally, when the decision against which it is desired to appeal is given, or by chamber summons according to the pra,ctice of the High Court, within fourteen days of the decision. (b) Where an appeal lies with leave of the Court application for leave shall be made in the manner prescribed in Rules Lf9 and 50 within fourteen ditJ§... of the q~~gainst-w/:Jich.itis.desir~f!..l_o appeal ------~-· or, where the application~for /§:_ave to appeal has -· -- ~.....,_----------- -·--·-~--------~-- be~~Q_the High Court and refused within fu!}_@ea.J;@J!_sof~emf~H (Emphasis ours) After carefully going through the record, it is evident that the application for leave has not been refused by the High Court. The application was not heard on merit and was struck out for being incompetent. In the prevailing circumstances the application cannot 3 be said to have been refused within the meaning of the provision of Rule 45 (b ). See Thomas David Kirumbuyo and Ahas Mhanga v Tanzania Telecommunications Co. Ltd, Civil Application No. 1 of 2005 CAT (unreported). We are therefore of the considered view that ,.-------- the application for leave before this Court has been brought prematurely. The application is incompetent, and ought to have been heard by the High Court as it has not been determined on merit. We therefore, strike out the application for being incompetent. We grant costs to the respondent. DATED at IRINGA this day 26th July, 2013 E. M. K. RUTAKANGWA JIUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL f the original. :?::~\ ..,.;, ,,ff</ ~ ~ ! ' OUR 4 \