20170303 TZCA Arusha2

20170303 TZCA Arusha2

The Court overruled the preliminary objection, finding that the word 'shall' in Rule 106(1) is not imperative but relative, subject to the discretion provided in sub-rules (9) and (19). Exceptional circumstances existed due to the protracted nature of the dispute and promptness of applicants' actions. The applicants satisfactorily explained the delay as technical, not actual, and thus good cause was shown for extension of time.

Citation
20170303 TZCA Arusha2
Parties
Applicant: Zahara Kitindi; Applicant: Dominic B. Francis; Respondent: Juma Swalehe; Respondent: Ramla Juma Swalehe; Respondent: Baraka Juma Swalehe; Respondent: Athumani Juma Swalehe; Respondent: Bisula Juma Swalehe; Respondent: Salim Juma Swalehe; Respondent: Aziza Juma Swalehe; Respondent: Ramadhani Juma Swalehe; Respondent: Rashid Juma Swalehe; Respondent: Ashura Juma Walehe
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
3 March 2017
Procedural Posture
Civil Application / Ruling on Preliminary Objection and Main Application
Outcome
application allowed
Legal Topics
Extension of Time, Stay of Execution, Preliminary Objection, Technical Delay
Source Language
English
Civil Procedure Extension of Time Stay of Execution Preliminary Objection Technical Delay

Case Brief

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Parties

Zahara Kitindi

Applicant

Dominic B. Francis

Applicant

Juma Swalehe

Respondent

Ramla Juma Swalehe

Respondent

Baraka Juma Swalehe

Respondent

Athumani Juma Swalehe

Respondent

Bisula Juma Swalehe

Respondent

Salim Juma Swalehe

Respondent

Aziza Juma Swalehe

Respondent

Ramadhani Juma Swalehe

Respondent

Rashid Juma Swalehe

Respondent

Ashura Juma Walehe

Respondent

Procedural Posture

Civil Application / Ruling on Preliminary Objection and Main Application

Legal Issues

  1. 1 Whether failure to file written submissions in support of the application mandates dismissal under Rule 106(1) and (9) of the Tanzania Court of Appeal Rules, 2009
  2. 2 Whether exceptional circumstances exist to warrant waiver of compliance with Rule 106(1)
  3. 3 Whether applicants have shown good cause for extension of time to file application for stay of execution

Ratio Decidendi

The Court overruled the preliminary objection, finding that the word 'shall' in Rule 106(1) is not imperative but relative, subject to the discretion provided in sub-rules (9) and (19). Exceptional circumstances existed due to the protracted nature of the dispute and promptness of applicants' actions. The applicants satisfactorily explained the delay as technical, not actual, and thus good cause was shown for extension of time.

Court Disposition

application allowed

Orders

  • Applicants to file the intended application for stay of execution within sixty (60) days of delivery of this ruling.
  • No order as to costs.