20171027 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 698 OF 2016 (Originating from Probate and Administration Cause No. 29 of 2009) IN THE MATER OF THEESTATE OF THE LATE TWAHIL SELEMANI KU$UNDWA AND IN THE MATTER OF APPLICATION FOR THE EXTENSION OF TIME FOR REVOKE THE FINAL ACCOUNT BY ASHA TWAHIL KUSUNDWA ..................................... 15T APPLICANT MUSTAFA TWAHIL KUSUNDWA .............................. 2No APPLICANT VERSUS IBRAHIM TWAHIL KUSUNDWA ................................. RESPONDENT RULING . MURUKE, J. The applicants herein pray for extension of time within which to file application for revocation of the final account for the estate of the late Twahi! Selemani Kusundwa out of time. The application 1 ·I is supported by the affidavit sworn by Asha Twahil Kusundwa and Mustafa Twahil Kusundwa. In the affidavit in support of the application, the applicants stated that, on 17th January, 2014 they filed an application to challenge the filed inventory and for revocation of letters of Administration against the respondent on ground of misuse of the estate. While the application still pending, the respondent, without Court's order filed the final account basing on the contentious inventory pending in Court. The said final account failed to distribute the estate among the beneficiaries. The delay occasioned due to the fact that the applicants were waiting for determination of Misc. Civil Application No.14 of 2014 which had great chances of success. The ruling was delivered in favor of the respondent on 12th February, 2016. On 14th March, 2016 an application for an extension of time to file an application to revoke the final account of the estate of Twaihil Seleman Kusundwa was filed. The respondent objected extension sought on the reason that, there is no sufficient cause. The extension of time is entirely in the discretion of the court to grant or refuse it. However, the court has to exercise it judiciously and there must be sufficient cause for so doing. VVhat 2 {; amounts to "sufficient cause" has not been defined. From decided cases a number of factors have to be taken into account, including whether or not. the application has been brought promptly, the absence of any or valid explanation for the delay; lacks for diligence on the part of the applicant. It is firmly established law that for the court to grant extension of time, the applicant must disclose sufficient cause for the delay for the court to condone such delay; as was held in the case of Alhaj Abdallah Talib v. Eshakwe Ndoto [1990] TLR 108. Furthermore, the grounds disclosing sufficient cause must be by an affidavit of the material person as was held the case of John Chuwa V. Anthony Ciza [1992] TLR 233. In this application these tests of the law have been met. The reasons for the delay are contained in the affidavit in support of the application as deponed by Asha Twahil Kusundwa and Mustafa Twahil Kusundwa and therein. The intended application is seeking to challenge illegality of the final account which failed to distribute the estate among the beneficiaries. In Kalunga and company Advocates Vs National Bank of Commerce, [2006] TLR 235, the Court of Appeal held: 3 "when the point at issue is one alleging illegality of the decision being challenged the court has a duty even if it means extending the time for the purpose to ascertain the poi9nt and if the alleged illegality be established to take appropriate measures to put the matter and the record straight'~ In the circumstances it is fair that this application be granted in order for the c:·pplicants to move forward in the intended application process and this does not in any way occasion injustice to the respondent because he will be heard on application. I consider applicants have sufficient cause. Accordingly, application granted. Intended application to be filed within 30 days from today. Parties are related and in circumstance of this case, each party to bear own cost. It is so ordered. JUDGE 27/10/2017 4 Ruling delivered in the presence of Michael Chahe for the applicant and Idda Rugakingira fort e respondent. JUDGE 27/10/2017 5