Automated Summary
Key Facts
Alliance Insurance Corporation Limited (the applicant) sought a stay of execution for a High Court judgment ordering it to pay TZS 100,000,000.00 in damages for a motor vehicle accident. The 1st respondent (Ogape Wilfred Kileo, administrator of the late Emmanuel Wilfred Kileo's estate) and 2nd/3rd respondents (Msengi S/O Fredrick Hamis and Fredy Richard Magabe) resisted the application, arguing execution was already completed via a Gunishee Order Absolute dated 6th June 2025 and transfer of funds. The Court of Appeal ruled the application incompetent due to non-compliance with Rule 55(1) of the Tanzania Court of Appeal Rules 2009, which requires service within 14 days of filing. The applicant filed the application on 24/3/2025 but served the 1st respondent on 11/8/2025 (141 days later), leading to the application being struck out with costs.
Transaction Type
Insurance Policy
Issues
- The court examined whether the applicant's failure to serve the respondents within 14 days of filing the application under Rule 55(1) of the Tanzania Court of Appeal Rules rendered the application incompetent. The respondents argued that the delay invalidated the process, while the applicant claimed the objection was factual, not preliminary.
- The applicant sought a stay of execution, alleging the High Court erred by not considering all exhibits/facts regarding the insured vehicle's liability and awarding excessively high general damages. The court did not reach this issue due to the procedural objection being sustained.
Holdings
The application was struck out for non-compliance with Rule 55(1) of the Tanzania Court of Appeal Rules, 2009, which requires service within 14 days of filing. The court held that the failure to serve the respondents in time rendered the application incompetent.
Remedies
The applicant's motion to stay execution of the High Court judgment was struck out with costs. The Court of Appeal held that the application was incompetent as it violated Rule 55(1) requiring service within 14 days of filing. No other remedies were granted.
Monetary Damages
100000000.00
Legal Principles
The court applied procedural rules requiring service of notice of motion and supporting documents within 14 days of filing (Rule 55(1) of the Tanzania Court of Appeal Rules). Failure to comply rendered the applicant's motion incompetent, and the preliminary objection was sustained. The ruling emphasized that objections based on clear procedural non-compliance qualify as preliminary objections, even when raised by successor advocates.
Precedent Name
- Gasper Peter vs Mtwara Urban Water Supply Authority (MTUWASA)
- Mukisa Biscuits Manufacturing Company Ltd v. WestEnd Distributors Company Ltd
- Jackline Hamson Ghikas v. Mllatie Richie Assey
- Ephraimu Christopher Manase Mrema v. Homange Kastory Kanzugala and Another
- Asma Shaha Salehe v. Kombo Shaha Salehe
Cited Statute
Tanzania Court of Appeal Rules, 2009
Judge Name
- L. M. MLACHA
- Mbagwa J.
Passage Text
- It follows that, there is a none compliance with rule 55 (1) of the Rules making the application incompetent. This makes a deliberation on other points and determination of the application of no useful purpose. The application is struck out with costs.
- On the second point, like the counsel for the respondents, I have the view that the submission that the counsel for the applicant is not sure whether service was done by the former advocate or not amounts to an admission that service was not affected within 14 days as required by the law. I also share the view that, the service which was done by the current advocates, to fill in the gap, did not bridge the gap. The objection is thus sound and sustained.
- The preliminary objection in this case arises from facts pleaded and not facts to be ascertained by evidence. It is a point of law based on rule 55 (1) of the rules. It does not require evidence to be established other than facts pleaded in the case. There is an allegation of none compliance to rule 55 (1) of the rules. The respondents are saying that they were not served with the notice of motion, affidavit and the supporting documents in time as provided under the law. It is thus a point of law which arises from the clear implications of the pleadings and qualify to be a preliminary objection.
Damages / Relief Type
Compensatory Damages of TZS 100,000,000.00 awarded by the High Court for motor vehicle accident damages