Zuberi Mussa VS Shinyanga Town Council TBR Civil Appl. No.3 of 2007 PDF
Zuberi Mussa VS Shinyanga Town Council TBR Civil Appl. No.3 of 2007 PDF
Zuberi Mussa VS Shinyanga Town Council TBR Civil Appl. No.3 of 2007 PDF
AT TABORA
ZUBERI M U SSA...........................................................................APPLICANT
VERSUS
SHINYANGA TOWN COUNCIL............................................. RESPONDENT
RULING
MASSATI. 3.A.:
Act and Rule 8 of the Court of Appeal Rules, 1979 (the Rules) for the
following orders:
abandoned the second prayer because he held the view, and I think
rightly so, that, a single Justice could not review the decision of the
Court. So, in the present ruling I will only consider and decide on the
and 7 of the affidavit, and his submission in Court, Mr. Mtaki urged
me to find that since the applicant was bona fide litigating in Court at
all the material time and since the said application for review had
But Mr. Jerome Muna, learned counsel for the Respondent, filed
Court, Mr. Muna argued that the reasons set out in the affidavit to
account for delay did not constitute sufficient reason for extension of
time; and that, in any case the application for review stood little
present case. In sum total, Mr. Muna submitted, that by making the
handling the matter and that, in his view, did not constitute sufficient
so which was not the case in this case. He went on to submit that
further submitted that the ruling in Civil Application No. 100 of 2004
complying with the law. On Rule 89 Mr. Mtaki pointed out that the
appeal before the Court that was struck out being a second appeal,
the applicable rule was Rule 89 (2) rather than Rule 89 and so,
clearly the Court overlooked it. His application for review, thus had
extension of time.
the Rules. This rule calls for exercise of the Court's discretionary
not possible nor desirable to lay down and follow any hard and fast
rules.
5
success.
and not rule 89 (1) as urged by Mr. Muna, but Mr. Muna cannot be
faulted for this, because, in his Notice of Motion, Mr. Mtaki did not
specifically cite Rule 89 (2) but only Rule 89 which was not entirely a
cannot determine how the Court overlooked that provision and thus
find that the application for review has any chances of success.
extension of time.
6
the applications. Mr. Mtaki, on the other hand, has urged me to find
I think, the word must be given its literary meaning to mean, care
own peculiar facts. In a case such as the present one, one must
inevitably look at the history of the case and the reasons for the
dispute that after Civil Appeal No. 16 of 1999 had been struck out on
It was fixed for hearing on 2.7.2003, but could not proceed because
Mr. Mtaki did not appear. No reasons were recorded for his non
application was refused. The application was struck out with leave to
filed yet another application for review No. 100 of 2004. The
But the law would fail in protecting the rights of the parties if it was
human. Advocates are human and they are bound to make mistakes
oversight only once and makes a different one the next time that
is not shown how many similar mistakes, Mr. Mtaki has made in
record, the two different applications were struck out for different
to agree with Mr. Muna that, that alone, is evidence that the
Applicant was not diligent. I agree also with Mr. Mtaki that the
Applicant, who has been in and out of the Court corridors pursuing
his case has been diligent in his quest for justice. In the absence of
any mala fides on his part, the Court cannot shut out its doors to
him.
disclosed sufficient reasons for the delay in filing his application for
application for review within 14 days from the date of this order.
Order accordingly.
DATED at TABORA this 26th day of October, 2009.
S.A. MASSATI
JUSTICE OF APPEAL
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( J.S. MGETTA)
DEPUTY REGISTRAR