ally kilimbiti chubi and others vs joel mabula shimba 2020 tzhclandd 54 1 june 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 57 OF 2020 ALLY KILIMBITI CHUBI.... 1st APPLICANT ABDALLAH MWALIM BOFU ,2nd APPLICANT HAWA MBWALI................ 3 r d APPLICANT VERUS JOEL MABULA SHIMBA RESPONDENT RULING MGETTA, J: On 10/2/2020, three applicants namely Ally Kilimbiti Chubi, Abdallah Mwalim Bofu and Hawa Mbwali, did file a Chamber Summons under the provisions of "Section 14 of the Law of Limitation Act CAP 33" and Section 95 of the Civil Procedure Code Act, CAP.33. In the Chamber Summons supported by an affirmed affidavit, the applicants are praying for extension of time within which to make an application requesting for a stay of execution of the decree passed on 13/3/2017 by this Court in Land Case No. 152 of 2011. The execution application sought to be stayed in the Execution No. 75 of 2019. Along with filing counter affidavit, the respondent, one Joel Mabula Shimba, through a legal service of Saiwello T.J. Kumwenda, the learned Advocate did raise a preliminary objection that the entire application is bad in law and improperly before this court. Before embarking into the merit or demerit of the application, as a cardinal principle, I would start resolving the raised preliminary objection. It is on the record that upon being aggrieved by the decision delivered on 13/3/2017 by this court, the applicants preferred an appeal to the Court of Appeal. They first lodged a notice of appeal on 29/7/2019. The notice of appeal is still valid. This means that the matter is still in the jurisdiction of the Court of Appeal. In his written submission, Mr. Kumwenda, the learned advocate for the respondent stated that the applicants erroneously filed this application for extension of time to file application seeking for stay of execution; while, it ought to be filed before the Court of Appeal where there is still a valid notice of appeal. He stated further that rule 10 of the Court of Appeal Rules, 2009 provides for that extension of time to file application seeking for stay of execution of the decree of the High Court whose decision is challenged, to be filed in the Court of Appeal. I had an opportunity to go through the written submissions filed by the applicants, and have found nothing substantial to assist me. In law where there is a valid notice of appeal before the Court of Appeal, it is wrong for the High Court to receive and entertain an application for extension of time to file application seeking for stay of execution. In such circumstances, the High Court is barred to entertain subsequent proceedings, vide: East African Development Bank Versus Blueline Enterprises Limited; Civil Appeal No. 101 of 2009 (Court of Appeal) (DSM). (Unreported). In the event, I find this application misplaced and is accordingly refused. It ought to be filed before the Court of Appeal where they had lodged notice of appeal. In the upshot, this application is accordingly dismissed. In the circumstances of this application, no order as to cost is given. Accordingly ordered. -y J.S.MGETTA JUDGE 01/6/2020. COURT: This ruling is delivered today this 1st June, 2020 in the presence of the first applicant, who is also representing the rest two who are absent; and, in the presence of Mr. Saiwello T.J. Kumwenda, the learned advocate for the respondent, who also present. * '// J.S.MGETTA JUDGE 01 / 6/2020 COURT: Right of Appeal to the Court of Appeal is fully explained.