19970516 TZHC Dar es Salaam

IN THE HIGH corRT OF TAN7,ANIA

AT DAR ES SALAAM PROBA'i'E. AJ\TI) ADMINISTRf,TION CAVSE NOa 28/94

IN THE MATTER OF THE ESTATE OF THE LATE PHILEMON

ABONYO MGUTU

AND

IN THE MATTER OF AN APPLICATION FOR LETTERS OF

ADMINISTRATION BY ANTHONY ALONG OGUTU

RULING KAJI, J,. This is an application by the applicant Ju1THONY AIDNG MGUTU for extesion of time within which to file an application for,,reviewe It has been filed under s.14 ~f the Law of Limitation Act, 19710 The gist of the matter is that on 21st April, 1994 the applicant filed a petition for being appointed the administrator of the estate of the late PHILIMON OBONYO MGUTU who died at D 9 Salaam and, 2nd November, 1993. Subsequent to that petition the respondent SARA MGUTU.filed a saveat ~ an or around 1st June, 19940 Pursuant to the filing of that caveat, this court on 16th June, 1994 issued a notice to the applicant under Rule 82 (2 A) of ~he Probate and Administration Rules requiring the applicant to apply for citation·within • 21 days from the 4ate~of service. That notice was served on the applicant on 17th June, 1994 through his advocate Hyera (Advocate). Supposed to have filed his application for citation not later than by '7th July, 1994. But the applicant did not do soo So on 12th October, 1994 the caveator's/respondent's learned counsel Mr,. Magesa applied for the applicant's petition to be marked "'withdrawn., His applic;::i_ti011 was granted and the applicant •s petition was marked withdrawn under Rule 82 (2A) of the Probate and Administration Rules, r 2 On 20th .Sepi;ember, 1995 the applicant filed this application through the legal services of Mchora & Company

(Advocate). His mair,i ground for his delay is that he was not notified by either his advocate Hyera or his agent / representative _IBO J,J,W,'\.LA KUJ/1. about the notice or the withdrawal. He said he was residing in Tarime District and had appointed one Leo \Tayala Kuja to represent him. The said Wayala died around .l\.pril, 1995 without telling him anythinis about the progress or state of his petition. This application has been strongly resisted by the respondent through har learned counsel Mro Magesa. Mr. Magesa maintained that the applicant has failed to show sufficient or good cause for befog late for almost two years despite the fact that the notice was served on him on 17/6/94 through his advocate and that th•.' withdra;-i order was made by the court almost 3 months later, that is, on 12/10/94. The learned counsel went on replying that if his advocate Mr. Hyera or his so called agent/representative Wayala did not inform his in time then that is not the concerm of the court and ·can not be said to be sufficient or good cause •. Mr4 Magesa went on replying that the applicant has also failed to show that the intended application for review has overwhelming chances of success. With all this the learned counsel called upon this court to dismiss this application with costs. In short that is the gist of the matter. There is no dispute that the applicant was seryed through Mro

Hyera (Advocate). The applicant has not denied Mro Hyera to be his advdcate. If Mr Hyera did not inform him about it that is not the concerm of this ~ourt. There is nothing indicating that at any stage the'applicant appointed I or instructed Wayala to represent himo There is no Power of Attorney or 1 anything to that effect. I have peruzed a copy ot the intended application for review. In that application the applica.~+ i.s inter.ding tv challenge the withdrawal order made by this court on 12th October, 199 1i- ..i!'l that it was made by application by ~he caveator and not by the petitioner. Rule 82 (2B) of the ProbG.te and Administra.tion Rules and s.59(2) of the Probate and Administration Ordinance Cap 445 e.re very clee,r on this. There is therefore no error apparent on the face of the record for review. Had the applicant been diligent enough ~1e would probably have tried his chances under Rule 82 (2D) of the Prob.:~.te and Administration ,~· ~ Rules to b.ave his petition restored ratl1er than rush:ing for a reviev1 without the necess.3.ry pcercquisities :for a review., There is no error apparent on the face of the recorde There are no good causes for delaying for almost two years to file this application• Application dismissed with costs. However this does not mean he has no right of inheritance if he is among the entitled beneficiarieso He can pursue his right through the proper chanuel. Otherwise as for as this application is concerned it stands dismissed with costso .S.,' N. KAJI

JUDGE 16/5/1997 ....Court: Ruling has been delivered in the pr0sence 01 Mro Nga~sala for .:.::-..·-- i Mr Mchora for the applicant and also holding briefs for Mr. Magesa learned counsel for the respondent this 16th' day of May, 1997. /j',. I . ,l·. ;..__,..' I /' - ' So .N. KAJI

JUDGE 16/5/199?'