Anney Anney vs Teonas mchama. & Another,CA no 87/03 of 2023.

This case explain the issue of certificate of delay once appeal is strucked out and power of Registrar of high on issuing certificate as well as issue of counting a day.

FIKIRINI. J.A.:

The application before me preferred by way of notice of motion in terms of rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules), is to move the Court to grant extension of time within which the applicant, Anney Anney, can lodge his intended appeal. In his affidavit in support of the application the applicant has ably given an account of what transpired 

from when the High Court delivered its judgment on 9th March, 2016 to»

14th Soptember, 2022 when he discovered that the leave granted to him on16th August, 2022 vide Miscellaneous Civil Application No. 83 of 2022, and Copies of ruling and drawn order supplied to him on 7th September, 2022, time ror him to lodge his appeal had elapsed, and hence the present application.

is true that a certificate of delay, warrants filing of an appeal after time to do so has elapsed. The certificate of delay obliged to be issued pursuant to rule 90 (1) of the Rules, excludes the days of delay counting 

from when a letter was written to the Deputy Registrar High Court (Registrar) to when the applicant has been informed through a letter from the Registrar, that the documents requested were ready for collection. The scenario involved in this application is different. Here I am dealing with an application after the appeal has been struck out. The truth of the matter is

> once the appeal has been struck out, the Registrar’s power provided under 

rule 90 (1) of the Rules is automatically relinquished. 

This was well explained in the case of Badru Issa Badru v. Omary Kilendu and

Hashim Rungwe t/a H. Rungwe Ltd, Civil Application No. 97/17 of 2020, in which the situation akin to the one prevailing in the present application occurred. The Court in illustrating how the certificate of delay

>operates, stated that the remedy after the appeal has been struck out is for a party to apply for an extension of time instead of requesting a certificate of delay since the Registrar no longer had the power to issue one.

The rationale behind the stance is obvious that: one, once the lodged appeal is struck out for being incompetent, the applicant is 

presumed to have all the requisite documents. Therefore, there was no 

need to request the same documents again. The only missing and required 

documents would have been from the application for extension of time to lodge a notice of appeal and/or leave to appeal to the Court of Appeal. 

Two, the Registrar of the High Court is only mandated to issue a certificate 

of delay, excluding the time when the appellant was following up on the 

proceedings before the High Court and not otherwise. The provision of Rule 90 (1) of the Rules is strictly restricted to the activities before the High Court. The provision doe? not empower the Registrar to deal with the exclusion of time not within the High Court jurisdiction. 

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