Makame, Kisanga and Ramadhani, JJ.A.: When these two References, concerning the same parties, came up for hearing, it was agreed, all round that they should be E consolidated for hearing. They arise out of the same transaction and share a common background of five different applications to single judges of this Court. It was clearly desirable to deal with two References together. Mr. Mbuya, learned advocate, represented the applicant, Transport Equipment Ltd., while Mr. Maira and Mr. F Marando learned Counsel, advocated for the respondent, D.P. Valambhia. Both Mr. Maira and Mr. Marando addressed the Court on behalf of the respondent.
Civil Reference No. 7 of 1991 came to us as a result of Omar, J.A. refusing to consolidate for hearing two applications before him: Civil Application No. 13 of 1991 G by the present respondent, which sought to prevent the present applicant from appealing against the decision of Rubama, J. in the main suit, High Court Civil Case No. 210 of 1989, for failure to take essential steps in instituting an appeal; and Civil Application No. 29 of 1991 in which the present applicant applied for extension of time for serving the H Respondent with a copy of the Notice of Appeal. The application for consolidation was by Mr. Mbuya and, as afore said, it was refused. In the event Omar, J.A. did not have to go into the merits of the two applications.
The argument in favour of consolidation was that the two applications were essentially I two sides of the same coin, as it were.
MAKAME JJA, KISANGA JJA, RAMADHANI JJA
That is to say if, for example the single judge decided that the present applicant had A indeed failed to take essential steps and so strike off the Notice he could not then turn round in the other application and permit the present applicant to comply with all the formalities. And vice versa.
Against consolidation it was submitted that for administrative reasons one of the B applications was not listed for that particular day, in the first place, and that one application could be determined without affecting the course of the other.
Basically the same arguments were repeated, if with elucidation, before us. C
We are grateful for the inputs by learned Counsel. The destination of these exercises must be to do justice, and in a conclusive and meaningful manner. We think with respect to refuse to consolidate will be to fragment the process and delay the outcome. We are D satisfied that to consolidate would be the better course in the circumstances, and we so order. The two applications shall therefore go to a single judge who shall hear them together as consolidated, and determined them. We respectfully urge an early hearing as the outcome there from will have a close bearing on other aspects of the dispute between the parties. E
The second Reference we dealt with was No. 10 of 1991 as already indicated. The application before a single judge, Mapigano, Ag. J.A. was Civil Application No. 15 of 1991. Following certain decisions by Rubama, J. in the High Court, there was an application for a grant of stay of the execution of the decree. For reasons Mapigano, F Ag. J.4, lucidly explained, there was ordered only a partial stay. He granted a stay in respect of only the general damages pending determination of the intended appeal but declined to grant a stay in respect of the 40% of the contract sum.
Mr. Mbuya urged before us that if they went on appeal they would challenge even the G award of 45% of the contract sum. Mr. Marando, for the respondent, opposed the application and submitted that there was no valid ground for faulting Mapigano, Ag. J.A.'s decision. He further submitted that one of the factors to be taken into account was the substance of the intended appeal and suggested that there was none here. H
We have given anxious thought to the matter. We think, with respect, that a consideration of the general damages cannot exclude a reflection on the award refused to be stayed. The two may well have a bearing one on the other and if, as in this case, I the award of general damages was ordered to be stayed we think it would have
MAKAME JJA, KISANGA JJA, RAMADHANI JJA
been neater to stay the other part of the award. It is not in receivable that the applicant A would raise arguments on the part of the award stayed which would impinge on the portion not stayed.
We therefore allow the Reference and accordingly order the whole decree stayed pending determination of the appeal depending, of course, on the outcome of the hearing of the consolidated Applications 13 and 29 of 1991 before a single judge. B Despite the proliferation of applications, as observed, we very much hope that at the end of the tunnel a truly just and conclusive and of this chequered conflict will have been achieved.
C Order accordingly.
D
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