19880901 TZHC Dar es Salaam

L IN TH.t: HIGH CuUHT UF' TAl\Jt'.'.i,tNIA AT LA~ ES SALAKM MISC~LLAN~GU~ CIVIL CAUSE NG. 56 UF 1987 In the matter of the ~stbte of the Late JUHN MZEE and In the matter of the ~robate and Administration Urdinance Cap, 445 an~ Section 18, (1) of the M.C.A. 1984. 1<ULING :tv1AlNA 1 J. this is an application for leave to appeal out of ~ime •. The decision· of the district. court was delivered to the parties on 6wh March, 1975 anct this application was filed in this court on 26th September, 1987. 'lhe main re1.,son for the long delay is that the record of the district court, including the judgement, were lost soon after the juugement was delivered. The dispute between the parties is over a house situated at Plot 18 Msimbazi Street in Dar es Salaam. That house was subjept matter of Probate and Administration Cause l'lo.1($ of 1967. The l!rimary Court held that the house which belonred to theapplicant's lute f.s.ther, John Mzce, should be given to the applicant as his inh~ritance. The respondent was disatisfied and she appealed to the district court at Ilala. In his judgement the district magistrate reversed the tleci;ion of the ~rimary Court and held thut the respondent, Christina jO'hn, was the lawful owner of the house. As I said eurlier the judgement of the district court was delivered to the p~rti8s on 6th March, 1967. The applicunt claims in his affidavit that all ell

along intended to appeal against the decision of .the district court, but could nut uo so because the original proceedings and judgement of the district court could not be found. ~he applicant could not file his appeal without those documents. Bven the original records of the .i!rimary Court could not be :found. l-ihat was available was a phot<,.st&t copy of the proceedini:;s and judgement of the primary court. At the hearing of this application, Mr. Mkondya who appeared for the respondent, produced a photo copy of the judgement of the district court. Mr. Maira, counsel for the applicant, said that he had not even seen that copy of judgement before. I ho.ve read all the anuextures to the applieant•s affidavit. It is manifestly clear that the orieinal record of the district court cannot be found. When it w~s actually lost or stolen, ••••••• /2- ... 2 _; cannot be ascertc.i.ined. ·rhe poss~bility is that it was lost soon after the juugement wus deliveredo bomehow, .the respondent was able to obtain a copy of the district court judcement. Unfortunately, the a~~lic~nt wQs not aware that the respondent had a copy. In my view, the positions seems to be that the applicant was unable to appeal because he c oulu not e;et a copy of tlie proceedings and juJgement of the district couri. In th~ ci~6umitanc~s; the deia~ in filing the appe~l is for reason~ beyond the.applicant 1 s

cohtrdl. Whether the applicant had knowledge of the decision of the district court or not, is immaterial. What is importaht is that the record of the district court w&s iost before the applicant could obtain a copy of the juctgement and therefore the applicant is not to blame for the delay. It is for these re~sons thut this application is granted as prayed. fhe memorandum of appeal should be filed on or before 17th September, 1988. \t,4,~· 'vJ. J. Jv1AIN.A

JUDGE l.;htt f;S Si-i.Lhl-i.I"J 1st ~eptember 1 19b80 Maira for the applic~nt ~espondent is present in person.