Mwaikasu, J:
This is an application for leave to appeal out of time. It has been contended by Mr B Marandu, learned counsel for the appellant that upon delivery of the judgment of the lower appellate court on 7 May 1992, on the same day the lower appellate court was notified of the intention to appeal, copied to the counsel for the respondent, and such notice was received on the same day. A copy of judgment C of the lower court was received on 3 July 1992, but no copy of proceedings was then supplied, for the reason that it had not been typed. That is also confirmed by the record of the lower appellate court, as per endorsement made on Mr D Marandu's letter dated 3 July 1992, on the same day to the effect that copies of the proceedings and judgment of the primary court should be supplied first and then district court proceedings should be typed and supplied at the earliest. That then, it has been contended, made it difficult for the appellant to frame a proper and sound memorandum of appeal. Mr Marandu further contended that on 3 August 1992 E another reminder was sent to the lower appellate court, requesting the supply of the copy of proceedings but the same had not yet been supplied even by 10 August 1992 when this application for leave to appeal out of time was filed. That again appears to find support in the record of the lower appellate court, as per endorsement on Mr Marandu's letter of 3 August 1992, whereby the DM minuted to F the civil section that they should ensure that such request is met after payment of necessary fees. Such endorsement is also dated 3 August 1992. Mr Marandu further contended that by the time this application was being presented they had not yet been supplied with such copy of proceedings to enable them to formulate G their grounds of appeal and that it was difficult to do so on the basis of the copy of the judgment alone as he was not present when the appeal was argued. On the above grounds the learned counsel prayed for an extension of time to run to such time that the copy of proceedings shall have been supplied. H
That has been opposed by Mr Kinguji, learned counsel for the respondent on the grounds, inter alia, that the failure of the appellant to have copy of proceedings was due to the fact that he demanded the same through correspondence when he had not paid for them. He then referred this court to the case of Hasham Larji v I
A Kotecha (1) where it was decided that it is not sufficient to simply apply for copy of proceedings and then rest without taking any further action to procure the same.
As rightly contended by the learned counsel for the appellant, it is evident from the facts as observed above that the case cited before this court by the learned B counsel for the respondent as authority for defeating this application is clearly distinguishable from the facts of this case. For it is evident as also noted from the record of the lower appellate court that by 3 August 1992 such copy of C proceedings had not yet been ready for the supply to the appellant, despite frequent reminders. The appellant cannot in the circumstances be held to be responsible for the delay in obtaining copy of proceedings from the lower appellate court. It is the lower appellate court which has contributed to such delay.
D No doubt, copy of proceedings along side with copy of judgment are necessary for the purposes of framing a sound memorandum of appeal. It is from the time of the supply of both such documents that the limitation of time for appeal runs.
Accordingly I find that this application has merit. It is accordingly allowed and the appellant is hereby granted extension of time of his appeal to run from the date he E receives the copy of proceedings from the lower appellate court. It is, however, noted that such copy of proceedings have now been typed. The appellant should therefore arrange at the earliest to procure them on payment of the necessary fees.
Order accordingly. F
A