adolf geogre kweka vs julius elisamehe mkeni 2023 tzhclandd 17179 29 november 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 496 OF 2023 (Arising from Misc. Land Appeal No. 31 of2021 originating from the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala in Land Appeal No,29/2020 which originated from the decision of Wazo Tribunal Case No. 1/2019) ADOLF GEORGE KWEKA....................................................... APPLICANT

VERSUS JULIUS ELISAMEHE MKENI................................................. RESPONDENT Date of last order: 22/11/2023 Date of ruling: 29/11/2023

RULING A. MSAFIRI, J. The applicant have lodged the present Application by way of chamber summons under Section 11(1) of the Appellate Jurisdiction Act (Cap 141 R.E 2009). He prays for an order of the Court for extension of time within which the Applicant may apply for the certification of point of law to be determined by the Court of Appeal of Tanzania. The Application has been taken at the instance of the applicant and it is supported by the affidavit deposed by Adolf George Kweka, the applicant himself. i I The applicant and respondent appeared in person, they were unrepresented. On the prayer by the parties and leave of the Court, the Application was heard by way of written submissions. On 02/11/2023 the Court set a scheduled order whereby the submission in chief by the applicant was to be filed by 09/11/2023, the reply submission by the respondent was to be filed by 16/11/2023 and rejoinder (if any) was to be filed by 21/11/2023. The matter was set to be mentioned on 22/11/2023. On 22/11/2023, it was the applicant only who appeared and informed the Court that he has filed his submission in chief on time but has not received a Reply from the respondent. The respondent was absent without any notice to the Court. And from the Court records, only the submission from the applicant was filed, there was no reply submission from the respondent. From this circumstances the Court

had no option but to draw an inference that the respondent have failed to appear on the date of hearing and be heard in contest of the Application. Since there was a Court's schedule order for hearing, the respondent was bound to comply with the Court's order although he has already filed his counter affidavit. By failing to file his reply submission, it amount to failure of the respondent to appear A// ' 2 and defend against the claims of the applicant. It follows therefore that the determination of the Application at hand will base on the applicant's submissions only. The submissions by the applicant was drawn and filed by the applicant himself. In his submissions, the applicant gave a brief background of the dispute that it started in 2019 where the respondent instituted a Complaint No. 1/2019 before Wazo Ward Tribunal. That the respondent obtained an ex- parte judgment and decree without the knowledge of the applicant where the said respondent was declared a lawful owner of the disputed property. The applicant then unsuccessfully appealed against the decision of the Ward Tribunal both at the District Land and Housing Tribunal of Kinondoni at Mwananyamala in Land Appeal No. 20/2020 and to this Court as the second bite in Misc. Land Appeal No. 31/2021. The same upheld the decision of the Ward Tribunal. He intends to file an appeal to the Court of Appeal but he had to apply

for certification on points of law to which he is out of time hence this Application. The applicant submitted further that the reason for the failure to file an Application for certification on point of law is that soon after this Court^^ 3 have delivered its judgment on 01/11/2021 in Misc. Appeal No 31/2021, he filed for Application No.686 of 2021 on 30/11/2021 seeking for certificate on point of law. That the Application was struck out for the wrong citation of the law. He said that after that, he fell sick and underwent treatment in different hospitals including Tumaini Dispensary. He attached the Medical chits in his affidavit to prove tnat That a^ter that, he filed two Applications which were all withdrawn due to technicalities. The applicant stated tnat the law requires the applicant to advance sufficient reasons in support of his Application. He cited tne case of Benedict Mumelo vs. Bank of Tanzania, Civil Application No. 12 of 2002, CAT at DSMfUnreported) where it was held thus, " What amount to sufficient cause has not been defined, from decided cases a number of factors has to be taken into account including whether or not the application has oeen brought promptly; the absence of any or valid explanation for the delay, lack of diligence on the part of the applicant" The applicant argued that, he has all along being trying to challenge the judgment of this Court which

originated from the judgment of District Land and Housing Tribunal. That the time spent by the applicant from the date of judgment of this Court until when the instant Application was filed,. 4 it was spent in this Court. That, had it not been for the status of health of the applicant, the current Application could have been filed soon after the ruling of the two Applications were delivered. The applicant said that the reasons for delay are illegalities, the issue of illness and the time spent in Court which was attributed by the circumstances of the Application sought for extension of time to file application of certificate on point of law. He concluded by praying for the Court to grant all the orders sought in chamber summons, with costs. The extension of time is purely the court's discretion. However for the court to exercise its discretion for extension of time, good cause must be shown. It follows therefore that the applicants are required to demonstrate good cause before the court can grant an extension of time. However, what constitutes good cause has not been defined in the provisions of law but has been set under case law in a number of decisions. In the said decisions a number of factors have to be considered before the court can exercise its discretion and grant the sought extension of time. These are; whether or not the application has been brought promptly; a

valid. 5 explanation for the delay and whether there was d.iigence on the part of the applicant. In the case of Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women Christian Associations, Civil Application No. 2 of 2910 (unreported), several factors to be considered before the court can exercise its discretion of time were set to be; Z The need to account tor the period of delay, ii. The delay should not be inordinate. Hi. The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the act that he intends to take. iv. If the court feels there are other sufficient reasons such as existence of the point of taw of sufficient importance such as the illegality of the decision sought to be challenged. It follows tnen that tne issue tor determination m tne Application at hand is whether the applicant has demonstrated good cause for this Court to exercise its discretion and grant the orders sought. I have read the contents of the affidavit and supplementary affidavit in support of tne Application along with the submission by the applicant in Court. It is clear that the first reason advanced by the applicant is that he 6 has spent time in this Court filing for the Applications for extension of time to file application for certificate on point of law and that he fell ill hence was unable tc file the Applications on time. He

said that after the Misc. Land Appeal No 31/2021 was dismissed in judgment delivered on 01/11/2021, he promptly filed an Application No.686/2021 wnich was struck out on legal technicalities on 06/6/2022 However the applicant did not show when this Application No.686/2021 was filed after the judgment of 01/11/2021. He just said it was filed promptly. He averred that, after tne delivery of the ruling of Application No. 686/2021, the applicant fell sick and had to attend the medical treatments hence ne could not file another Application on time. Thar immediately after recovery, he started seeking for legal aid ano after contacting iawyers, he filed another Application. The medica' form attached are of Tumaini Dispendary dated 02/7/2022, 10/7/2022, 19/7/2022, 29/7/2022, 03/8/2022, 12/8/2022, 20/8/2022, ano 28/8/2022 Looking at these dates which purportedly the applicant was sick and unable to file another Application, it is clearly seen that Application No.686/2021 was delivered on 06/6/2022, but the medical treatments shows. 7 that the applicant started to attend hospital on 02/7/2022, about one month after the ruling. The applicant did not account for aimost 30 days from 06/6/2022 to 02/7/2022. The applicant also did not show the dates wnen he started seeking for tne lawyers, as he claimed in paragraph 11 of his supplementary affidavit, when did he find them and when did he file

another Application. The applicant just stated that even that other Application No.343 of 2022 was withdrawn, and as per attachment it shows that it was withdrawn on 07/9/2022. Again the Applicant stated that after that he fell skk again and was put under medical supervision and hence he could not file his another application on time. The attached medical forms shows that the applicant was attended on various cates such as 09/9/2022,19/9/2022,30/9/2022,04/10/2022,12/10/2022,21/10/2022,30/1 0/2022,06/11/2022,14/11/2022,20/11/2022,29/11/2022,20/12/2022,12/12 /2022, and 03/12/2022. The medical form shows the applicant attending for checkup on 15/4/2023 After 15/4/2023, the applicant went for treatment again on 14/7/2023. It is nor shown in the applicant's evidence when Application No. 319 of 2023 was filed but it shows tnat it was withdrawn on 13/7/2023 and 8 the applicant was present in person. He filed this Application on 11/8/2023. There is no account of the period from 13/7/2023 when the last Application was withdrawn to 11/8/2023 when this Application was filed, making almost 28 days which were unaccounted for. From this, I have gathered that despite medical forms to show that the applicant was sick, the applicant have failed to account for the days which are not covered tn the medical forms First, tne applicant have failed to state dearly the dates of filing those

Applications whicn were either strucK out or withdrawn, hence the time which those Applications were filed is not known By this, the applicant did not show the dates he filed Applications No.343/2022 and No.319/2023 after Application No. 686/2021 was struck out. Second, he did not account for almost 30 days from 06/6/2022 to 02/7/2022. being the dates when the ruling on Application No. 686/2021 was delivered and the date when tne applicant purportedly started medical treatment respectively. Third, the applicant did not account on the days he claimed to have been searching for lawyers. Among the conditions set in the case of Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women Christian Associations (supra), is the need for accounting for the days of. 9 deiay. Deiay of even a single day has to be accounted for as it was held in the case of Bushin Hassan vs. Latifa Mashayo, Civil Application No. 3 of 2007, where it was stated that:- ”Delay even of a single oay has co be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken." I find that the applicant despite his claim of being sick which was supported by the medical forms, he was unable to account for those days which was not established that he was sick as I have analysed herein above. In his submission, the applicant have raised

the issue of illegality claiming that the reasons for extension of time are illegalities of the decision This was a submission from the bar as it is not reflected in the applicant's affidavit. In addition, the applicant did not elaborate on those claimed illegalities on the impugned decision. It is the trite law that the Illegalities being alleged must be apparent on the face of record not the one that would be discovered by a long drawn argument or process, (See the case of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania 10 (supra). From foregoing reasons, I find that the applicant has failed to demonstrate sufficient reasons for this Court to grant the extension of time sought. It follows then that this Application has no merit and it is hereby dismissed with costs. It is so ordered.

JUDGE 29/11/2023 u