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 He therefore urged the Court to invoke Rule 4(2) (a) Court of Appeal Rules 2009 (the Rules) and mark the appeal withdrawn.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