The General Manager Kahama Mining Corporation Limited v Kadu (Order of the Court) (Civil Appeal No. 31 of 2015) [2016] TZCA 10; (18 October 2016);

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IN THE COURT OF APPEAL OF TANZANIA

AT TABORA

(CORAM: MBAROUK.J.A ..LUANDA.J.A .. And MZIRAY. J.A.)

CIVIL APPEAL NO. 31 OF 2015

THE GENERAL MANAGER KAHAMA

MINING CORPORATION LIMITED.......................APPELLANT

VERSUS

KHERI KADU.................................................... RESPONDENT

(Appeal from a judgment and decree of the High Court of Tanzania

at Tabora)

(Mjemmas, J)

dated 5th day of November, 2014

in

Civil Case No. 1of 2006

ORDER OF THE COURT

MBAROUK, J.A.:

When the appeal was called on for hearing today, it transpired that the advocate for the appellant had earlier on 20th September, 2016 filed a notice to withdraw the appeal.

Mr. Yussuf Sheikh, who represented the appellant informed the Court that on 2nd September, 2016 the parties in this case have signed a Deed of Settlement to withdraw the appeal as part of seven clauses in that Deed of Settlement. He therefore urged the Court to invoke Rule 4(2) (a) Court of Appeal Rules 2009 (the Rules) and mark the appeal withdrawn.

On his point, Mr. Kamaliza Kayoga Kayaga, learned advocate for the Respondent informed the Court that as they have filed a notice of preliminary objection earlier on 27/4/2013 to the effect that the purported appeal is incompetent as the record of appeal has contravened Rule 96(1) (d) of the Rules, hence this Court cannot withdraw an incompetent appeal. He therefore prayed for the appeal to be struck out with costs, but he later changed his mind on the issue of costs.

In his rejoinder submissions, Mr. Yussuf promptly agreed with Mr. Kayaga, but on the issue of cost he urged the Court not to condemn his client to costs, because according to clauses 3 and 4 of the Deed of Settlement, they have mutually agreed that they should not come again to Court for these claims and costs too .

In the circumstances, we agree with Mr. Kayaga that the Court cannot withdraw an incompetent appeal, and as this appeal has contravened the requirements of Rule 96(1)(d) of the Rules, the same is rendered incompetent. For being incompetent we hereby strike out the appeal with no order a to costs. It is so ordered.

DATED at TABORA this 19th day of October, 2016.

M.S. MBAROUK

JUSTICE OF APPEAL

B. M. LUANDA

JUSTICE OF APPEAL

R.E.S. MZIRAY

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

E.F. FUSSI

DEPUTY REGISTRAR

COURT OF APPEAL