Malegesi and Another v Tanganyika Bus Service (Order of the Court) (Civil Appeal No. 150 of 2016) [2014] TZCA 1; (09 October 2016);

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IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM: RUTAKANGWA, J.A.,MASSATI, J.A., And MUGASHA, J.A.)

CIVIL APPEAL NO. 150 OF 2016

1. ISRAEL MALEGESI

2. FRANCIS MAINGU.........................................APPELLANTS

TANGANYIKA BUS SERVICE ..………………………… RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Mwanza)

(Sumari, J.)

dated the 9th day of October, 2014 in

Misc Civil Application No. 47 of 2013

……….

ORDER OF THE COURT

RUTAKANGWA, J.A.:

When this purported appeal came before us for hearing it transpired that the record of appeal was incomplete. Although the impugned decision of the High Court is appealable with leave, the incorporated order for leave to appeal is incurably defective in that it is wrongly dated.

Furthermore, the record of appeal does not contain the proceedings pertaining to the appellants’ application for leave to appeal, as well as the parties’ written submissions in that application. The appellants readily conceded these irregularities.

On his part, Mr. Wilbard Kilenzi, learned advocate for the respondent, urged us to strike out this improper appeal on account of offending the requirements of Rule  96(1) (c) and (i) of the Tanzania Court of Appeal Rules, 2005 (the Rules). He predicated this prayer under Rule 4(2) (a) of the Rules. The appellants left the matter in the Court’s discretion.

There is no gainsaying here that failure to comply with the requirements of Rule 96 as above demonstrated, renders this purported appeal incompetent.  We are left with no option but to strike it out under Rule 4(2) (a) of the Rules, as we hereby do, as correctly urged by Mr. Kilenzi.

The parties to bear their own costs.

DATED at MWANZA this 10th day of October, 2016.

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

S.A. MASSATI

JUSTICE OF APPEAL

S.E.A. MUGASHA

JUSTICE OF APPEAL

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

P. W. BAMPIKYA

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL