alphonce kihwele vs irene lazaro mollel 2023 tzhclandd 17129 15 november 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO.643 OF 2023 (Arising from Land Case No. 132/2011) ALPHONCE KIHWELE APPLICANT VERSUS IRENE LAZARO MOLLEL(As Adminitratrix of the Estate of the Late Prucheria Meitoris Mollel/ suing by Attorney Lazaro Lokaji Mollel) RESPONDENT RULING 10"^ to 15^ November, 2023 E.B. LUVANDA,J In the chamber summons, the Applicant mentioned above, Is praying for extension of time within which to file application to set aside exparte judgment In Land Case No. 132/2011 delivered on 30/10/2013 before Hon. Kalombola,1 In the affidavit In support of the application, the Applicant pleaded non service of summons to appear to file a written statement of defence, also technical delay In prosecuting Misc. Application No. 238/2022 for extension of time to set aside the above named judgment, which prayer was granted on 8/09/2022 where the Applicant was given an extension of forty five days; Misc. Application No. 589/2022 filed on 22/09/2022 to set aside the exparte judgment, but was struck out on 21/02/2023 for being incompetent; Misc. Appiication No. 118/2023 filed on 14/03/2023 for setting aside the eAparfe judgment above mentioned, which the same application was withdrawn on 25/09/2023 for being time barred. The Applicant pleaded to have been diligent in pursuing these courses. In the counter affidavit, the Respondent stated that the Applicant was served by ordinary means by way of summons, expedited mail service (EMS) and substituted service in Uhuru News Paper, but abandoned to appear to defend. That the Applicant filed incompetent Misc. Appiication No. 589/2022 which was struck out before Hon. Arufani, J; filed Misc. Appiication No. 118/2023 beyond forty-five days without leave, which was withdrawn on 25/09/2023. He stated that the Applicant has never been diligent in prosecuting both Land Case No. 132/2011 and subsequent applications, argued it demonstrate laxity. Mr,Boniphace Erasto Meii learned Advocate for the Applicant submitted that the delay to file appiication to set aside eApa/te judgment was not due to negligence rather it was due to the fact that he has been bona fide pursuing applications before this Court which was filed timely but the said appiication has been struck out for being incompetent as a result find himself prevented by technical delay. He submitted that after finding that he was out of time he promptly filed application for extension of time on 27/09/2023 which Is two days from when the Incompetent application was withdrawn. He cited the case of Attorney General vs Mkongo Building and Civil Works Contractors Ltd & Two Others, Civil Application No. 266/2019 CAT. In reply, Mr. Joseph Assenga learned Counsel submitted that the Applicant has failed to account for about 3650 days of delay counting from 30/10/2013 when the Impugned judgment was delivered, arguing the Respondent exhibited that the Applicant was served with summons. He submitted that the Applicant has not demonstrated any diligence in prosecuting the proceedings, arguing the Applicant filed Incompetent applications which were struck out by different Judges. He submitted that Application No. 238/2022 the Applicant was granted extension of forty-five days from 8/09/2022 but failed to file the application as per schedule and filed Application No. 118/2023 belatedly on 14/03/2023, which he opted to withdraw on 25/09/2023 on learning that It was time barred. He submitted that the Issue of technical delay cannot successful be Invoked In the situation like this In which applications are not properly before the court coupled by lack of diligence on the part of the Applicant. Going by the records, after the Applicant was granted extension of time of forty-five days on 8/09/2022 in Misc. Land Application No. 238/2022, on 22/09/2022 being after elapse of only fourteen days he filed the application for setting aside the impugned exparte judgment, to wit Misc. Land Application No. 589/2022, which was struck out on 21/02/2023 after this Court declined a request by the Applicant to amend and correct the date of the impugned exparte judgment and decree (termed by the Applicant as human and typographical error). On 14/03/2023 the Applicant field Misc. Land Application No. 118/2023 for setting aside the exparte judgment, however he withdrew the same on 25/09/2023 after noting it was out of time. Four days later, on 29/09/2023 he filed this application. In view of the above chronological events, to my view the Applicant is entitled to be accommodated under technical delay. To my conviction, there is no element of laxity or lack of diligence. Step by step, the Applicant has been keen taking recourse after knock down. Had the Applicant neglected to file in time after grant of the first extension, that could be said doors are now closed for him. But in the circumstances where the Applicant has been ail along struggling for his right, it will be unwise to dose up doors for him. I therefore rule that the Applicant is entitled to be reinstated at the position of the first grant. The Applicant is given a chance of fourteen days to file the application for setting aside the impugned judgment. The is granted. No order for costs. c ❖ E.B. UV A GE 15/11/2023 Ruling delivered through virtual ^court attended by Mr. Joseph Assenga learned Advocate for the Respondent and in absence of Mr. Boniphace Erasto Meli learned Counsel for the Applicant. o /: C E.B. UV A C? GE a? 4 lMll/2023 ★ O