AMBWENE REUBEN MWASUBILA JUDGEMENT

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 14128 OF 2024 (Originated from Land Application No. 24 of 2019 before the District Land and Housing Tribunal for Rungwe at Tukuyu and Misc. Application No. 09 of 2023, the District Land and Housing Tribunal for Rungwe at Tukuyu) AMBWENE REUBEN MWASUBILA (As an Administrator of the Estate of the late RUBEN JULIUS MWASUBILA)…...………APPELLANT VERSUS JUDITH IPYANA MWAKALINGA………………..……….RESPONDENT JUDGMENT Date: 25 November 2024 & 17 February 2025 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal for Rungwe at Tukuyu (the DLHT). The brief facts of the case are that the appellant brought a complaint against the respondent before the DLHT, through Application No. 24 of 2019. The matter was dismissed on 21 August 2020 due to non attendance of the 1 appellant. The appellant unsuccessfully filed a series of miscellaneous applications to set aside the dismissal order and some for extension of time, including Application No. 52 of 2020, Application No. 32 of 2022, Application No. 01 of 2023 and Application No. 09 of 2023. Dissatisfied with the decision of the DLHT, particularly in Application No. 09 of 2023, the appellant brought this appeal on the following grounds: 1. That, the trial Tribunal erred in law and fact for failure to extend time to file an application to set aside dismissal order passed on 21 August 2020. 2. That the trial tribunal erred in law and fact in holding that the delay to file the application was due to the negligence of the appellant. Hearing of the appeal was by way of written submissions. The appellant was represented by Ms. Jennifer Biko and the respondent was represented by Mr. Steward Ngwale. In her submission in chief, Ms. Biko prayed to merge the grounds of appeal and argue them collectively. She argued that in order for the court to extend time, the applicant must show good and sufficient reasons warranting his application. The counsel contended that the good and 2 sufficient reason in this matter was technical delay. She added that ever since Application No. 24 of 2019 was dismissed for want of prosecution, the appellant has been struggling to restore his case by promptly filling Misc. Application No. 52 of 2020, Misc. Application No. 32 of 2022 and Misc. Application No. 01 of 2023 which were struck out. As a result, the statutory period of 30 days to file the application to set aside the dismissal order expired and the only remedy was to institute an application for extension of time, hence Misc. Application No. 09 of 2023. The same was dismissed for reasons that the appellant was negligent for instituting applications which were incompetent for different reasons. The counsel insisted that the appellant has never acted negligently since he was diligent to file the miscellaneous applications on time. In an attempt to restore the dismissed application. Supporting her argument, she cited the case of Fortunas Masha vs. William Shija and Another [1997] TLR page 154. Submitting against the appeal, Mr. Ngwale on the first ground argued that it is the court’s discretion to grant or refuse an application for extension of time subject to the applicant advancing reasonable grounds. He cited the case of National Microfinance Bank Plc vs. Nell Global Engineering Co. Ltd, Miscellaneous Civil Application No. 136 of 2019 that referred to 3 the case of Lyamuya Construction Company Ltd vs. Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010. Mr. Ngwale added that the counsel for the appellant admitted in her submission that she was late for seven days to file the application. He contended that the appellant failed to account for each day of delay and also failed to point any illegality committed by the DLHT. Therefore, the DLHT was justified to dismiss an application for extension of time to file application to set aside the dismissal order. On the second ground of appeal, the counsel argued that the appellant instead of showing diligence he was seeking empathy for his negligence. Thus goes against the principle established in the case of National Microfinance Bank Plc vs. Nell Global Engineering Co. Ltd (Supra). In her rejoinder, Ms. Biko reiterated most of what she stated in her submission in chief. In addition, she was of the view that the cases cited by the respondent’s counsel are distinguishable to the matter at hand. As the appellant never delayed for seven days and was not supposed to account for each day of delay. She insisted that the delay demonstrated was a technical delay which is a good reason for extension of time. 4 Regarding Mr. Ngwale’s argument on the point of illegality, the counsel rejoined that since technical delay was the reason for extension of time, it was immaterial to talk of illegality. That, the appellant’s miscellaneous applications that were struck out for technical reasons, led to the delay for the dismissed application. The counsel maintained, that all the miscellaneous applications were filed on time within the statutory period of thirty days. That, the appellant was not late for seven days, but he filed his application seven days after the decision, which was within time. Concerning the second ground, Ms. Biko submitted that the appellant did not seek empathy from the DLHT. To the contrary, he showed his diligence by taking legal action immediately after the DLHT struck out the filed miscellaneous applications. She referred to the case of Fortunas Masha vs. William Shija and Another (supra) and explained that based on the appellant journey, an incompetent application does not amount to negligence. After going through the DLHT records and submissions by both parties, the pertinent issue for discussion is whether the DLHT was right to dismiss Application No. 09 of 2023. 5 Ms. Biko for the appellant relied solely on technical delay as the reason to warrant the appellant extension of time. That, the appellant was diligent and filed his miscellaneous applications promptly soon after his case was dismissed caused the delay. On the other hand, Mr. Ngwale argued that the appellant did not account for each day of delay, and he cannot benefit from his own wrongs because the dismissed miscellaneous applications were a result of his own negligence. I agree with Mr. Ngwale, that it is settled principle of law that the discretion to extend time is vested upon the court subject to various conditions as well elaborated in the case of Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women’s Christian Association of Tanzania (supra). However, I agree with Ms. Biko that the appellant was diligent in his pursuit to resolve the situation. Thus in my opinion, I believe the appellant’s negligence is on the short comings of his miscellaneous applications which were dismissed and not the delay itself. Therefore, since the former falls within the ambit of technical delay, the DLHT should have considered the appellant’s reasons for the delay. 6 In the case of Kibaha Housing Cooperative Society Limited (KIHOCOSO) vs. Judith Yoas & Others, Civil Application No. 343/17 of 2021, the Court of Appeal stated: “Reading through the records, I could not see any ill motive on the part of the applicant in the filing and conduct of the applications. She appears to have been trying to find a solution to her problems, nothing more. I agree with counsel for the applicant that the proceedings were conducted bonafide. The time spent in the conduct of the proceedings is therefore excusable in what is referred to as 'technical delay'. An account of the period outside the technical delay period was also made.” Also see the case of Fortunatus Masha vs. William Shija and Another (supra). To wit: "A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement of the ruling of the court striking out the first appeal. In these circumstances an extension of time ought to be granted." Based on the records, soon after the appellant’s suit was dismissed, he took initiatives by filing a series of miscellaneous applications as aforementioned. It is thus my finding that, the appellant has accounted for 7 the delay. It is also obvious that he acted promptly, without negligence on his side in the spirit of Lyamuya Construction Company Ltd (supra). Hence, I see no reason to discuss the second ground since the first ground is enough to dispose of the entire appeal. Consequently, the appeal is hereby allowed. The appellant is to file an application to set aside the dismissal order in Application No. 24 of 2019 before the DLHT within fourteen (14) days from the date of this decision. I make no order as to costs. It is so ordered. Right of appeal explained. DATED at MBEYA on this 17 day of February 2025. A. A. SINDA JUDGE 8