Automated Summary
Key Facts
Henry Zephyrine Kitambwa was dismissed from employment in 2017 for embezzling TZS 123,330,000. He appealed to the Public Service Commission (dismissed in 2017) and then to the President of Tanzania (dismissed in 2018). His judicial review application in the High Court was rejected in 2019 for failing to comply with procedural rules. The Court of Appeal determined the appeal was incompetent due to the absence of a letter from the High Court Registrar confirming document readiness, rendering the certificate of delay defective and the appeal time-barred. The court cited prior cases (e.g., Dhow Mercantile, Mohammed Suleiman Mohamed) to affirm that striking out an incompetent appeal voids the notice of appeal as well.
Issues
- The court addressed whether an incompetent appeal could be struck out without affecting the validity of the notice of appeal, referencing previous cases to determine the legal consequences of striking out an appeal.
- The court considered whether it could adjourn the hearing and stay the appeal to allow the appellant time to take appropriate steps to remedy the situation caused by the missing documents from the High Court registry.
Holdings
- The Court held that when an appeal is struck out for incompetence, the notice of appeal is also invalidated. This means the appellant must file a fresh application for an extension of time to lodge a new notice of appeal.
- The Court determined that the appeal was incompetent and struck out because it was filed out of time. The appeal was lodged on 11th May 2020, which was beyond the 60-day period prescribed under the Tanzania Court of Appeal Rules, starting from 23rd December 2019.
Remedies
- The appeal was struck out for being time-barred. The court also made no order as to costs because the respondents' counsel did not press for the relief.
- The court made no order regarding costs because the respondents' counsel did not request it.
Legal Principles
The court applied procedural rules regarding the requirement for a Registrar's letter confirming readiness of court proceedings for collection (Rule 90(1) of the Tanzania Court of Appeal Rules, 2009). It held that the absence of such a letter rendered the certificate of delay defective, making the appeal time-barred. Additionally, the court reaffirmed that when an appeal is struck out for incompetence, the notice of appeal is also invalidated, requiring a fresh application for extension of time to file a new notice. This was supported by precedents like Dhow Mercantile (EA) Ltd v. Registrar of Companies and Mohammed Suleiman Mohamed v. Amne Salum Mohamed.
Precedent Name
- Tanzania Telecommunications Co. Ltd v. Stanley S. Mwabulambo
- Judith Mbwile and Jackson Ernest Mbwile v. FBME Bank Limited (under liquidation) and Another
- Puma Energy Tanzania Limited v. Diamond Trust Bank Limited
- Tanzania Occupational Health Services v. Agripina Bwana and Another
- The Board of Trustees of the National Social Security Fund v. New Kilimanjaro Bazaar Limited
- Dhow Mercantile (EA) Ltd and Two Others v. The Registrar of Companies And Four Others
- William Loitiame v. Asheri Naftali
- Tanganyika Cheap Store v. National Insurance of Tanzania Limited
- William Shija v. Fortunatus Masha
- Paulina Samson Ndawawyav. Theresia Thomas Madaha
- Mohammed Suleiman Mohamed v. Amne Salum Mohamed and Ten Others
- Robert John Mugo (Administrator of the Estate of the late John Mugo Maina) v. Adam Molel
Cited Statute
Tanzania Court of Appeal Rules, 2009
Judge Name
- P. S. Fikirini
- Z. N. Galeba
- M. A. Kwariko
Passage Text
- Furthermore, it is also to be observed that it is now settled that after an appeal has been struck out upon the ground that it is incompetent, there is nothing, as it were, saved with regard to the appeal including the notice of appeal. That is, the order striking out the appeal also had the effect of striking out the notice of appeal as well.
- In the same vein in Puma Energy Tanzania Limited v. Diamond Trust Bank Limited, Civil Appeal No. 54 of 2016 (unreported) this Court observed that, the letter from the Registrar is meant to enable him to issue a certificate of delay that reflects a verifiable and definite latest cut-off date from which the sixty days within which to lodge an appeal under rule 90(1) of the Rules, starts to run.
- The applicant was correct in contending that when the appeal had been struck out the notice of appeal was also struck out: in that situation, if a party still wished to appeal, a fresh application had to be filed in the High Court seeking extension of time in which to give a notice of appeal.