almas charles mvungi vs asha said abdallah kipozi 2020 tzhclandd 68 20 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 501 OF 2018 (Originating from Land Application No. 171 of 2015 from Morogoro District Tribunal ) ALMAS CHARLES MVUNGI....................................... APPLICANT VERSUS ASHA SAID ABDALLAH KIPOZI..............................RESPONDENT RULING. S.M. MAGHIMBI. 3: By way of Chamber Summons, the Applicant is moving this Court under the provisions of Section 41 (2) of the Land Disputes Courts Act, Cap 216 R.E 2002 as amended by Act No.2 of 2006 and Section 19 (3) of the Law of Limitation Act Cap 89 R.E 2002 seeking for an order for extension of time to file Appeal out of time. The intended appeal is against the decision of the Mororgoro District Land and Housing Tribunal in Land Application No. 171/2015. The application is supported by an Affidavit of the Applicant dated 15th day of July, 2018. In this court, Mr. Mtanga represented the applicant while Mr. Liwewa represented the respondent. The application was disposed by way of written submissions. In his submissions to support the application, the applicant submitted that the reason for delay to file an appeal on time is that he did not receive copy of judgment on time. That the judgment was delivered on 18th May, 2018 and on the 24th May 2018, the Applicant wrote a letter to the tribunal requesting to be supplied with copy of judgment, decree and proceedings. l The said documents were made available to him on 11th July, 2018 when the time to appeal had lapsed. He argued that none-stamping of the sent sent letter to the tribunal is not his fault because as a layman, he was not aware of technicality as averred in paragraph 4 of the Affidavit. Further that the delay is not result of negligence. In reply, Mr. Liwewa submitted that the reason adduced for the delay doesn't hold water as they did not amount to "sufficient Causd’. He argued that there is no proof that the applicant wrote a letter to the tribunal requesting to be supplied with copy of Judgment as averred in the affidavit and that he did not account for the delay of 60 days from 18th May, 2018 when the judgment was delivered to 11th July, 2018 when he received the said copies to the filing of this application on 09th August, 2018 in which almost 29 days had lapsed. He supported his argument by citingthe cases of Benedict Mumello Vs. Bank of Tanzania, Civil Appeal No. 12/2002 (unreported), Interchick Company Limited Vs. Mwaitenda Ahobakiie Michael Civil Application No. 218 o f 2016 (unreported) and Vodacom Foundation Vs. Commissioner General (TRA) Civil Application No. 107/20 of 2017 (unreported) amongst others whereby in all these cases, it was emphasized that a delay even of a single day has to be accounted for. He concluded that no sufficient reason for the delay were adduced and praying that the application be dismissed with costs. No rejoinder was filed by the applicant. Having gone through the records of this application including the parties submissions herein, I have noted that the records of the tribunal show that the judgment was delivered on the 18th May 2018 and the copy of the 2 judgment was certified and made available to Applicant on the 11th July, 2018 while the current application was filed on the 09th August 2018. Section 19(2) of the Limitation Act (Supra), sets a principle that in computing the time of limitation, the period requisite to obtain copies of judgments and rulings should be excluded. Hence the counting of limitation period should have started on the 11th July, 2018 when the copy of judgment was certified and ready for collection. Now counting from 11th July, 2018 to the 09th August 2018 when the current application was filed, only 30 days had lapsed. Therefore when the applicant filed the Current Application on 09th August 2018, the applicant was still within time to have filed an appeal. On those observations, I see no need to dwell much on this application as the reason for the delay was not on the applicant's power and by virtue of Section 19(2) of the Limitation Act,(Supra) the appeal would have been within time, I see no single reason not to grant this application. That said, the application beforehand is hereby granted by extending time for the applicant to lodge his intended appeal which shall be lodged in this court within twenty one (21) days from the date of this ruling. Costs shall follow cause in the intended appeal. Application Allowed Dated Dar es Salaam this 20th April, 2020 JUDGE 3