In The Court of Appeal of Tanzania at Dar Es Salaam

1
Civil Application K.S.F Kisombe - The procedure for adding or

No.12 of 2007 – VS. Tanzania including additional documents in
Court of Appeal Harbours the record of appeal is to fille a
of Tanzania at Authority and supplementary record under rule
Dar es Salaam others 92(3) of the Court Rules, 1979
Kaji, J.A (Application for - Rule 104 of Court rules, 1979
leave to amend deals with amendments of
the record of documents in the record of appeal
appeal from the with some short falls.
decision of the - the Court can only use its
High Court of inherent powers under rule 3
Tanzania at Dar when dealing with any matter for
es Salaam Civil which no provision is made by the
case No Court of Appeal Rules, 1979 or
130/2003 – any other written law.
Mwaikugile, J)
IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM
CIVIL APPCATIONL NO. 12 OF 2007
K.S.F. KISOMBE……………………………………………….……….APPELLANT
VERSUS
TANZANIA HARBOURS AUTHOTIRY AND

OTHERS…………………………………...........................…..… RESPONDENT
(Application for Leave to amend the record of appeal from the

decision of the High Court of Tanzania at Dar es Salaam)
(Mwaikugile, J.)
Dated 9th September day of December, 2005

in
Civil Case No. 130/2003
2
…………………..
17 & 31 August,2007
RULING
KAJI, J, A.:
In a notice of motion made under Rule 104 of the Court of
Appeal Rules, 1979, the applicant, K.S.F. Kisombe, through his
advocate Mr. Kashumbugu, is moving the court to grant him leave to
amend the record of appeal as follows:-
(a) By removing the name of the first respondent
Tanzania Harbours Authority which has been
changed by operation of law thereby substituting the
name Tanzania Port Authority.
(b) By allowing the applicant to include important
documents in the amended record of appeal which
did not appear in the original record of appeal,
instead of filing a supplementary record thereafter.

3
In his brief oral submission based on his affidavit supporting the
notice of motion, Mr. Kashumbugu submitted that, when the case
started in the High Court, the first respondent was known by the
name of Tanzania Harbours Authority. But through operation of law,
the Ports Act No.17 of 2004, the name was changed to that of
Tanzania Port Authority. He thus prayed for leave to amend the
record by removing the name of the first respondent Tanzania
Harbours Authority. And by substituting thereat the name Tanzania
Ports Authority.
Mr. Kashumbugu further submitted that, while Tanzania
Harbours Authority was a specified corporation placed under the
second respondent, the Presidential Parastatals Sector Reform
Commission, Tanzania Ports Authority is not a specified corporation
and therefore not covered by the Presidential Parastatal Sector
Reform Commission. He therefore urged the court to remove the
name of the second respondent from the record of appeal.

4
Mr. Kashumbugu further submitted that, in preparing the
record of appeal, two important documents were not included.
These are: One: A letter from Tanzania Harbours Authority to the
Registrar National Board of Material Management dated 17/1/1999
signed by the Director General of Tanzania Harbours Authority.
Two: A letter from Tanzania Harbours Authority- Mkurugenzi wa
Utumishi dated 24/3/1999. He therefore prayed for leave to include
them in the amended record of appeal (Appeal No.123 of 2005). Dr.
Mapunda who appeared for the respondent assisted by Dr. Mhina did
not object the removal and substitution of the name of the first
respondent, and also the removal of the second respondent from the
record of appeal. However they strongly resisted the move to
include the two letters in the amended record of appeal. Dr. Mhina
who spearheaded the objection, contended that, Rule 104 of the
Court Rules, 1979 under which the notice of motion was made deals
with amendment of documents in the record of appeal, and not
addition or inclusion of documents in the record of appeal. The
learned counsel pointed out that, the procedure for adding or

5
including additional documents in the record of appeal is to file a
supplementary record under Rule 92 (3) of the Court Rules, 1979.
Dr. Mhina was therefore of the view that, this application for
inclusion of the two letters in the amended record of appeal is
misconceived and ought to be dismissed with costs.
As demonstrated above, the respondent’s counsel did not
object the applicant’s prayer to remove the name of the first
respondent, Tanzania Harbours Authority, and to substitute thereat
the name Tanzania Ports Authority, by virtue of section 81(2) of the
Ports Act, 2004. That prayer is therefore granted. The applicant is
granted leave, to amend the record of appeal by removing the name
of the first respondent Tanzania Harbours Authority and by
substituting thereat the name Tanzania Ports Authority. It was
agreed by learned counsel of both parties that Tanzania Ports
Authority is not a specified corporation and therefore not covered by
the Presidential Parastatal Sector Reform Commission. That being
the position the applicant is granted leave to amend the record of

6
appeal by removing from the record of appeal the second
respondent, the Presidential Parastatal Sector Reform Commission.
The applicant’s prayer for leave to include two letters in the
amended record of appeal appears to be an up hill track. Rule 104
under which this application was made reads as follows:-
104. “The court may at any time allow
amendment of any notice of appeal or notice
of cross – appeal or memorandum of appeal,
as the case may be or any other part of the
record of appeal, on such terms as it thinks
fit”
My understanding of this provision is that, the document which may
be allowed to be amended must first be in the record of appeal but
with some short falls. It must be in the record which the party wants
to rectify the shortfalls. In my view the provision does not
contemplate introduction or addition or inclusion of a document
which is wanting. If a party is of the view that the record of appeal
is defective or insufficient for the purpose of his case, he may lodge

7
in the appropriate registry four copies of a supplementary record of
appeal containing copies of any further documents or any additional
parts of documents which are, in his opinion, required for the proper
determination of the appeal as provided for under Rule 92 of the
Court Rules, 1979. Mr.Kashumbugu urged the court to invoke its
inherent powers under Rule 3 to allow the inclusion of the two letters
in the record of appeal if it finds Rule 104 inapplicable. With great
respect to the learned counsel, the court can only use its inherent
powers under Rules 3 when dealing with any matter for which no
provision is made by the Court of Appeal Rules, 1979 or any other
written law. In the instant case there is a clear provision for the
remedy prayed for, that is, by lodging a supplementary record
containing the said two letters under Rule.92. In that respect I do
not think this is an appropriate case to invoke the inherent powers of
the court under Rule 3. There is nothing suggesting that the door for
using the provisions of Rule 92 is closed. So the applicant can use it
if he so wishes.
8
In the result, and for the reasons stated above, I grant leave
to the applicant to amend the record of appeal No. 123 of 2005 by
removing the name of the first respondent Tanzania Harbours
Authority and by substituting thereat the name Tanzania Ports
Authority. I also grant leave to the applicant to amend the record of
appeal by removing from the record of appeal the second
respondent, Presidential Parastatal Sector Reform Commission.
However I refuse to grant leave to the applicant to amend the record
of appeal by including or adding the two letters in the record of
appeal purportedly under Rule 104 of the court Rules, 1979. The
application is partly allowed and partly dismissed to that extent.
Costs to abide by the result of the main appeal No. 123 of 2005.
DATED at DAR ES SALAAM this 17th day of August, 2007.
S.N. KAJI
JUSTICE OF APPEAL
I certify that this is a true copy of the original.

9
I.P. KITUSI
DEPUTY REGISTRAR

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1

Civil Application K.S.F Kisombe - The procedure for adding or

IN THE COURT OF APPEAL OF TANZANIA

CIVIL APPCATIONL NO. 12 OF 2007

TANZANIA HARBOURS AUTHOTIRY AND

(Application for Leave to amend the record of appeal from the

Dated 9th September day of December, 2005

In a notice of motion made under Rule 104 of the Court of

Appeal Rules, 1979, the applicant, K.S.F. Kisombe, through his

advocate Mr. Kashumbugu, is moving the court to grant him leave to

amend the record of appeal as follows:-

(a) By removing the name of the first respondent

Tanzania Harbours Authority which has been

changed by operation of law thereby substituting the

name Tanzania Port Authority.

(b) By allowing the applicant to include important

documents in the amended record of appeal which

did not appear in the original record of appeal,

instead of filing a supplementary record thereafter.

In his brief oral submission based on his affidavit supporting the

notice of motion, Mr. Kashumbugu submitted that, when the case

name of Tanzania Harbours Authority. But through operation of law,

Tanzania Port Authority. He thus prayed for leave to amend the

record by removing the name of the first respondent Tanzania

Harbours Authority. And by substituting thereat the name Tanzania

Mr. Kashumbugu further submitted that, while Tanzania

Harbours Authority was a specified corporation placed under the

second respondent, the Presidential Parastatals Sector Reform

Commission, Tanzania Ports Authority is not a specified corporation

and therefore not covered by the Presidential Parastatal Sector

Reform Commission. He therefore urged the court to remove the

name of the second respondent from the record of appeal.

Mr. Kashumbugu further submitted that, in preparing the

record of appeal, two important documents were not included.

These are: One: A letter from Tanzania Harbours Authority to the

Registrar National Board of Material Management dated 17/1/1999

signed by the Director General of Tanzania Harbours Authority.

Two: A letter from Tanzania Harbours Authority- Mkurugenzi wa

Utumishi dated 24/3/1999. He therefore prayed for leave to include

them in the amended record of appeal (Appeal No.123 of 2005). Dr.

record of appeal. However they strongly resisted the move to

who spearheaded the objection, contended that, Rule 104 of the

with amendment of documents in the record of appeal, and not

addition or inclusion of documents in the record of appeal. The

learned counsel pointed out that, the procedure for adding or

including additional documents in the record of appeal is to file a

supplementary record under Rule 92 (3) of the Court Rules, 1979.

inclusion of the two letters in the amended record of appeal is

misconceived and ought to be dismissed with costs.

As demonstrated above, the respondent’s counsel did not

object the applicant’s prayer to remove the name of the first

respondent, Tanzania Harbours Authority, and to substitute thereat

the name Tanzania Ports Authority, by virtue of section 81(2) of the

Ports Act, 2004. That prayer is therefore granted. The applicant is

granted leave, to amend the record of appeal by removing the name

of the first respondent Tanzania Harbours Authority and by

substituting thereat the name Tanzania Ports Authority. It was

agreed by learned counsel of both parties that Tanzania Ports