anthony deokalus dihindila as adminstrator of the estate of the late silvania mabunga brass anthony dihindila 2021 tzhclandd 823 10 september 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO.611 OF 2019 (Originating from Misc. Land Application No. 61 of 2014) .\ ANTHONY DEOKALUS DIHINDILA (As the Administrator ofthe.Estate of^the ^ \ ^ Is lateSiivania Miabunga)................ ^ APPLICANT N S \\\^ VERSUS BRASSI ANTHONY DIHINDILA >.^i...\.C..RESPONDENT \ Last date:27/08/2021 Ruling date:10/09/2021 R U LI N G MANGO,3. 2- The applicant prays.:;|qr^leaveto^appeal/to the Court of Appeal of Tanzania against the decision^of this^^^rtHn-Misc. Land Application No. 61 of 2014. The Application is by ^way of''Chamber Summons supported by an affidavit sworn by-the A^plicanFslSdvocate Mr. Samuel Shadrack Ntabaliba. In application N0'.^61\0f 2014 the Applicant prayed for extension of time to file dn^applicatlonjto set aside dismissal order In Land Appeal No. 119 of 2010. fhejdisriiissal order In Land Appeal No. 119 of 2010 was Issued after failure of the Appellant to enter appearance since when the appeal was filed. Court record Indicates that the Appeal was filed on 3'^'' December 2010 and It was dismissed for want of prosecution on 17'*^ September 2012. The reasons advanced by the Applicant In accounting for the delay to set aside the dismissal order was death of the Appellant, SILVANIA MLABUNGA which occurred on 19"^ January 2011. The Applicant herein has been appointed to be administrator of the estate of the late Silvana Mlabunga. This Court dismissed the Application for want of merit as it was not satisfied that the Applicant was prevented by a sufficient cause from applying to set \\ aside the dismissal order within time. Dissatisfied by thevdecision of this \\ /> Court the Applicant filed this Application praying forxjieavejto Appeal_,to the Court of Appeal of Tanzania. The Application proceeded exparte agai^^he„R^on^^t as he defaulted in entering appearance. Court reco'rd Mfeat^t^tfrnt^e Respondent was served and he entered appearance of\27''^^jbl^2020 when he prayed and was granted leave to file a counter affidavit.The Respondent did not file the (( >/■ counter affidavit and/he neyer entered, appearance on any other date thereafter. The Applicatioh' < <. Was.argued^-vway ] ) "V of Written submission. In his submission in support ofthe.Application,The Applicant's Counsel, Mr. Samuel Shadrack Ntabalib^h^submitted that the decision of this Court in Misc. Land Application 61 o^2W^deserve to be considered by the Court of Appeal of Tanz^mavbecausU this Court has misdirected itself when considering the reasons for-delay advanced by the Applicant. Highlighting the alleged misdirection by this Court, he submitted that, the Applicant was appointed to be the administrator of the estate of the late Silvania Mlabunga on 29'^ May 2013 while the Appeal was dismissed for want of prosecution on 17^ September 2012. He argued that, the Applicant had no powers to act on behalf of the late Silvania Mlabunga before his appointment to the 2 administrator of her estate on 29"^ May 2013. Thus, it was not possibie for the Applicant to apply to set aside the dismissal order before his appointment as the administrator of the estate of the late Siivania Miabunga who was the Appellant in Land Appeal No.ll9 of 2010. He is of the view that, the Applicant's reason for delay to set aside the dismissal order in Land Appeal No. 119 of 2010 is sufficient to move the Court to setz-aside its dismissal order. I have considered Court record and submission byX^e-^Appii^^t'^ounsei. It is well settled that granting extension of time^the discr^i6fT0f''"the Court. \\ \ This Court has exercised its discretion ariSlfound the-.Applicant to have failed to advance good grounds to move'the Court,to grant extension of time to <A,\ W ^ set aside a dismissal order in Land Appeal No.NL19 of 2010. The Applicant is of the view that he has established good^grounds for his delay to apply to set aside the dismissaLorder^Amon'^fhejssues highlighted by the Applicants counsel to be worthXTbeing consideret^by the Court of Appeal of Tanzania is whether, failure to act onvtime due to the delay in obtaining letters of // \\ \Xa administration'^of the deceased.estate can be considered to be a sufficient cause'to^extendTim^ofthe-Appiicant to apply to set aside a dismissal order issued'^afte7Sh^\ d^h of the Appellant, prior to appointment of the adminWrator of the estate of the deceased Appellant. I find this issue to be W JJ worth oTbeijng,Gonsidered by the Court of Appeal together with other issues that will be raised by the Applicant. I hold so because, it is reflected in the Ruling of this Court in Misc. Land Application No. 61 of 2014 at page 3 that, the late Siivania Miabunga, the Appellant in Land Appeal No. 119 of 2010, died on 19^ January 2011 and the Applicant was appointed to be the administrator of her estate on 29"^ May 2013 while the Appeal subject of this Application, Land Appeal No. 119 of 2010, was dismissed for want of prosecution on l?'*" September 2012. Thus, the Appeal was dismissed after the death of the late Silvania Mlabunga and before the Applicant's appointment as the administrator of the estate of the late Silvania Mlabunga as the administrator of her estate. It is only the Court of Appeal that can reconsider whether the issue raised constitute a sufficient ground for extension of time and whether in his Application, the Applicant had advanced good reasons in accounting for the delay to set aside the dismissal order in Land Appeal No. 119 of 2010. For that reason, the Application for leave is hereby granted. Costs to follow events. Z. D. MA^eO JUDGI 10/09/2021 i7 W / I \ a? A d y. /