Automated Summary
Key Facts
Henry Zephyrine Kitambwa was dismissed from employment by the National Audit Office in 2017 for embezzling TZS 123,330,000. He appealed to the Public Service Commission and then the President, both of which were dismissed. His judicial review application to the High Court was also dismissed in 2019, leading to this appeal. The Court of Appeal ruled the appeal incompetent due to the absence of a critical letter from the High Court Registrar confirming the availability of proceedings, which is required to calculate the appeal period. Without this letter, the appeal was deemed time-barred and struck out, including the notice of appeal.
Issues
- The second issue was whether the court could strike out the incompetent appeal while preserving the notice of appeal. The court concluded that when an appeal is struck out for being time-barred and lacking proper documentation, the entire record—including the notice of appeal—must be dismissed, as precedents indicate no survival of the notice in such cases.
- The court considered whether it could adjourn the hearing and stay the appeal to allow the appellant time to address the missing letter from the Registrar of the High Court, which affected the appeal's competency. The appellant sought an adjournment to procure the letter, but the court found no legal basis for indefinite delay due to the non-existent document.
Holdings
The Court of Appeal held that the appeal was incompetent and time-barred due to the absence of a letter from the High Court Registrar confirming the availability of the proceedings. The court emphasized that the lack of this letter rendered the certificate of delay defective, making the appeal lodged on 11th May 2020 outside the 60-day period prescribed by Rule 90(1). The court further ruled that striking out an incompetent appeal also invalidates the notice of appeal, citing precedents such as Dhow Mercantile (EA) Ltd v. Registrar of Companies and Mohammed Suleiman Mohamed v. Amne Salum Mohamed.
Remedies
- No order was made as to costs because the respondents' counsel did not press for the relief. The court explicitly stated it would make no costs order in this case.
- The appeal was struck out together with all documents composing the record of appeal, including the notice of appeal, because it was declared incompetent and time-barred for being lodged out of time. The court found that the absence of the Registrar's letter invalidated the certificate of delay, rendering the appeal hopeless.
Legal Principles
The Court of Appeal held that when an appeal is struck out for being incompetent, the notice of appeal is also invalidated. This follows established precedents (e.g., Dhow Mercantile, Mohammed Suleiman Mohamed) where procedural defects in the appeal process rendered all associated documents, including the notice of appeal, legally null. The ruling emphasizes adherence to formal procedural requirements over substantive claims.
Precedent Name
- William Shija v. Fortunatus Masha
- Tanzania Telecommunications Co. Ltd v. Stanley S. Mwabulambo
- Puma Energy Tanzania Limited v. Diamond Trust Bank Limited
- William Loitiame v. Asheri Naftali
- Robert John Mugo (the Administrator of the Estate of the late John Mugo Maina) v. Adam Molel
- Dhow Mercantile (EA) Ltd and Two Others v. The Registrar of Companies And Four Others
- Mohammed Suleiman Mohamed v. Amne Salum Mohamed and Ten Others
- Tanganyika Cheap Store v. National Insurance of Tanzania Limited
- Paulina Samson Ndawavya v. Theresia Thomas Madaha
- The Board of Trustees of the National Social Security Fund v. New Kilimanjaro Bazaar Limited
- Judith Mbwile and Jackson Ernest Mbwile v. FBME Bank Limited (under liquidation) and Another
Cited Statute
Tanzania Court of Appeal Rules, 2009
Judge Name
- M. A. Kwariko
- P. S. Fikirini
- Z. N. Galeba
Passage Text
- That is to say, legally, the absence of a letter from the Registrar in the record of appeal, in this matter triggered a chain of detrimental effects to the appellant's appeal. The said dreadful consequences to the appeal include, one, the certificate of delay issued in the absence of the letter is defective and cannot be used to exclude any time used by the Registrar for preparation and delivery of the copy of the proceedings... and three, the present appeal, having been lodged on 11th May, 2020, was lodged hopelessly out time. It is therefore time barred.
- In the final analysis and in view of the above discussion... this appeal which is incompetent for being time barred is hereby struck out together with all documents composing the record of appeal, the notice of appeal inclusive.
- 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...