asha hussein administratrix of the estate of hussein maghobo vs fitna edward chingwile another 2021 tzhclandd 721 19 february 2021

IN THE HIGHCOURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 683 OF 2019 ASHA HUSSEIN (As Administratix of the estate of Hussein Maghobo) APPLICANT VERSUS FITNA EDWARD CHINGWILE 1®^ RESPONDENT WAZIRI HAKIM TAMBALA 2"" RESPONDENT Last Order: 30/10/2020 Ruling date: 19/02/2021 RULING MANGO,J: The applicant seeks extension of time to appeal against the decision of the District Land and Housing Tribunal for Kibaha in Land Application No.35 of 2016 which was delivered on 20"" September, 2017. The application is by way of chamber summons made under section 41(2) of the Land Disputes Courts Act,[Cap 216 R. E. 2019], supported by an affidavit affirmed by the Applicant, Asha Hussein. The respondents oppose the appiication and they have filed a joint counter affidavit to that effect. The applicant had legal assistance from the Tanganyika Law Society while the respondents enjoyed legal services of Mr. Francis Mwita learned advocate. The application was argued by way of written submissions. The applicant's submission was drawn by Mr. Dennis Jacob Julius, learned advocate. In her affidavit and submission made by the learned counsel for the applicant, the applicant advanced two reasons for her delay to file the appeal within time. The reasons advanced in accounting for the delay is sickness of her family members, a husband and her daughter and delay in obtaining copies of Judgment and decree of the tribunal. To prove sickness of her husband and her daughter, applicant attached Final Bill of Mr. Abdul Chande Kibavu who is alleged to be the applicant's husband and a burial permit of one Tatu Ally Chande. As to the delay in obtaining copies of the judgment and decree, the applicant stated in her affidavit that the copies were certified February 2019 and was availed to her on July 2019. The learned counsel for the applicant argued that the reasons advanced are sufficient to move this court to exercise its discretion. In his reply submission the learned counsel for the respondents submitted that the applicant did not account for the entire period of delay with a sufficient cause. He is of the view that the copy of the ruling was ready for collection on an earlier date than 25"^ February 2019. He speculate that the applicant approached the tribunal with uncertified copy of the ruling to have it certified on the said date. He submitted further that after such certification it took 5 months for the applicant to be avaiied with certified copies of the documents and no expianations are given for such delay. It also took the applicant 5 more months to file this application and such delay have not been accounted for. The learned counsel submitted that sickness of the applicant's family members cannot be considered as a reason to account for the entire period of delay. To cement his argument, the learned counsel referred to the time the applicant husband was hospitalized at Muhimbili National hospital. In this, he submitted that the said patient was admitted for a single day ZS**" May 2017 to May 2017 and not the entire year as alleged in the affidavit and applicant's submission. Citing a series of cases the respondents counsel argued that the applicant has failed to account for the entire period of deiay with a sufficient cause and prayed for dismissal of the application. In his rejoinder the applicants counsel reiterated his submission in chief and submitted further that the arguments by the respondents' counsel that the copies of Judgment and decree were ready for coilection prior to the certifying date are unfound. He argued that the respondents have not tendered any evidence proving the same. As on the issue of sickness, the learned counsel argued that the husband of the applicant who is aged 88 was sick for the entire year. He also submitted that the daughter of the appiicant was also sick in the first quarter of the year 2019. The applicant attached the burial permit of her daughter to prove the same. He prayed that the application be granted. I have considered submissions from both parties and court record. The law, section 41(2) of the Land Disputes Courts Act, [Cap 216 R.E 2019] requires a party seeking extension of time to appeal to establish good reasons that caused his delay in filing the appeal. It reads: Section 14(2) ''An Appeal under subsection (1), may be lodged within 45 days after the date ofthe decision or order. Provided that the High Court may, for the good cause, extend the time for fiiing an appeai either before or after the expiry ofsuch period of 45 days." The copy of the judgment of the trial tribunal, attached to this application, indicates that the judgment was delivered on 16*^ August 2017 and certified on 25^ February 2019. This means it took more than one year for the tribunal to have the judgment typed and certified ready for collection by the parties. The applicant wrote a letter requesting for copies of the judgment and decree on 28^ August 2017 and paid the same on 7^ September 2017. Ordinarily, it is not possible for the person with the age of the applicant, 68 years to be making thorough follow ups after waiting for the documents for more than a year. The allegations by the respondents that the copies of judgment and decree were ready for collection in an earlier date to 19^ Feb 2019 are mere speculations. For that reason, this court considers that it is true that the applicant was availed with the copies on the date mentioned in her affidavit which is 15^ July 2019 As to the delay from 15^ July 2019 when the applicant received the copies of judgment and decree to 3'^ December 2019 when this application was filed, this court finds the sickness of the applicant's husband and death of her daughter to be sufficient cause for the delay. In holding so this court considered the undisputed fact that the applicant was taking care of her sick husband and daughter. The medical bill and hospital chits attached to the applicant's affidavit shows that the applicant's husband, Mr. Abdul Chande Kibavu was sick and received treatment at Muhimbili National Hospital for a long period. The Medical chits, bills and other medical report from Muhimbili National Hospital shows that Abdul Chande received treatment on a number of dates in the year 2017, and her daughter passed away on 18'^ July 2019 only three days after she received copies of judgment and decree of the tribunal. For those reasons, I find the reasons advanced by the applicant to be sufficient to move this court to exercise its discretion and extend time for the applicant to file her appeal. The application is hereby granted. The applicant should file her appeal within 30 days from the date of extraction of the drawn order from this ruling. No order as to costs because this application was filed and heard in forma pauperis. Z. D. N tA JUDGE Sr O' i /^/i \ W