The applicants are moving the Court under rules 48 (1) (a)
and 89 (2) of the Tanzania Court of Appeal Rules, 2009, GN No 368 of 2009 as
amended by The Tanzania Court of Appeal Rules (Amendments) Rules, GN. No. 362
of 2017 for an order striking out the Respondents’ notice of appeal from the
decision of the High Court, Dar es Salaam District Registry made on 1st
February, 2018 in Civil Case No. 225 of 2013 for alleged failure to take
essential steps in the intended appeal. The Respondents resist the application
against which they filed an affidavit in reply deponed to by the learned
Advocate who had represented them in the High Court.
The applicants successfully sued four defendants in the High
Court in Civil Case No. 225 of 2013 for several reliefs all of which
surrounding over a bequeath of a disputed property on Plot No. 648 Upanga area
in Dar es Salaam. The High Court delivered its judgment on 1st
February 2018 in favour of the applicants and on 27th February 2018,
the Respondents who were the 1st and 4th defendants
respectively, lodged a notice of appeal against the High Court judgment. Having
lodged the notice of appeal, the Respondents had sixty days within which to
lodge their appeal unless they had applied for copies of proceedings, judgment
and decree from the Registrar of the Court and had a copy of the letter
applying for the said copies served on the applicants. Failure to do so would
amount to failure to take essential steps in the appeal entitling the other
Respondents in the intended appeal served with copies of the notice of appeal
to apply for an order striking out the notice of appeal under rule 89(2) of the
Rules. This is what the applicants have done in the instant application. The
Notice of Motion cites two grounds prompting the filing of the application.
One, the Respondents have not taken essential steps in the appeal and two, the
intended appeal has been overtaken by the events. During the oral submissions
the Counsel for the applicants added a new ground.