Beda PaschalLymo TA Ben Cars Automotor vs Prisca Patric Mugavanyi Adminstrator of the Estate of the Late Patric Lukombeso Mugavanyi Misc Civil application No 7374

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISRTY AT DAR ES SALAAM MISC CIVIL APPLICATION NO. 7374 OF 2024 ( C/f Civil Appeal No.63 of 2023 in the High Court of the United Republic of Tanzania, Dar es Salaam Sub-Registry) BEDA PASCAL LYIMO ( T/A Ben Cars Automotor)……………………APPLICANT Vs PRISCA PATRIC MUGAVANYI ( Administrator of the estate of the late Patrick Lukombeso Mugavanyi) ……………………………………1ST RESPONDENT JAMES LUCAS MFUKO…………………………………………………2ND RESPONDENT SUNDAY MCHUNGA……………………………………………………3RD RESPONDENT RULING Date of last order:4-12-2024 Date of Judgment:25-2-2025 B.K.PHILLIP,J The applicant herein lodged this application, praying for an order to set aside the dismissal order of this court made on 19th March 2024 in respect of Civil Appeal No.63 of 2023. The application is supported by an affidavit sworn by the learned advocate Michael Kayombo, who appears for the applicant and also appeared for the appellant in Civil Appeal No.63 of 2023. The second respondent filed a counter affidavit in opposition to the application, whereas the first and third respondents did not oppose the 1 application. The learned Advocates, Evans Kaijage and Lulu Mwaruka appeared for the first and second respondents, respectively, whereas the third respondent appeared in person. The application was heard viva voce. Mr. Michael Kayombo submitted that on 19th March 2024, the date of dismissal of the appeal in question, he was sick, and the doctor had directed that he should be excused from duties for five days from 17th March 2024. Moreover, he submitted that he did not expect that the appeal could be dismissed on a date fixed for mention. He argued that he had not abandoned the appeal but failed to appear in court because he was sick. Thus, he implored this court to set aside the dismissal order and restore the appeal. On the other hand, the 1st and 3rd respondents did not object to the application, they urged this court to grant the application. The 2nd respondent objected to the application because the appellant abandoned the appeal and did not enter an appearance in court for three consecutive sessions. He was praying for delaying tactics because the pendency of the Civil Appeal No. 63 of 2023 in this court led to the stay of the execution processes that were initiated by the 2 nd respondent’s advocate before the 2 lower court to the detriment of the 2nd respondent. She implored this court to dismiss this application. In rejoinder, Mr. Michael Kayombo reiterated his submission in chief. He admitted that he did not appear in court for three consecutive sessions but maintained that he did not abandon the appeal. Having analyzed the rival arguments raised by the learned Advocate Michael Kayombo and Lulu Mwaruka, I am of the opinion that my task in this application is to determine whether the applicant has adduced good cause to move this court to set aside the dismissal order and restore the appeal. The reason advanced by Mr. Kayombo for his failure to appear in court on 19th March 2024 is that he was sick, and the doctor directed that he should be excused from duties. He attached a medical chit from Kigamboni Health Center showing that on 17th March 2024, he attended at that Health Center and the doctor prescribed that he should be excused from duty for three (3) days. In the dismissal order, this court stated that the applicant defaulted to appear in court for three consecutive sessions. The court’s records show that on 26th September 2023, Mr. Kayombo appeared in court, Thereafter, as conceded by Mr. Kayombo in his rejoinder, he did not enter an appearance 3 in court for three consecutive court sittings, that is, on 15th November 2023,14th February 2024, and 19th February 2024 without any notification to the court. Only the 2nd respondent appeared in court and informed this court that the appellant was praying delay tactics because the pendency of Civil Appeal in this court led to the stay of the application for execution that was filed by the 2nd respondent at the lower court against the 1st and 3rd respondent. In his submission, Mr. Kayombo did not address his failure to appear in court on 15th November 2023 and 14th February 2024. It was imperative for Mr. Kayombo to address this court why he did not enter an appearance in court for the three consecutive sessions. The appeal was dismissed not only because the appellant did not enter an appearance in court on 19th February 2024 but because he failed to appear in court for three consecutive sessions. Consequently, this court was made to understand that the appellant abandoned the appeal as he did not bother to comply with the court order, which was issued following his prayer to find out whether or not the 1st respondent was dead. Appeal no. 63 of 2023 was stuck, and the execution at the lower court was also stuck, so nothing was going on, and the 2nd respondent’s advocate was the only one attending to court. 4 It is worth noting that this court is enjoined with the power to issue appropriate orders to meet the ends of justice rather than allowing one party to frustrate the delivery of justice by simply not appearing in court without notifying the court because the matter is scheduled for mention. However, in the instance case, on 14th March 2024, this court entered an order for the last adjournment of the Appeal following the appellant’s non-appearance in court, and on the following session, that is,19th March 2024, the appeal was dismissed. The above aside, the medical chit attached to the affidavit supporting this application shows that on 17th March 2024, Mr. Kayombo attended a health center for treatment where he was given medicine and excused from duties for three days. I am of a settled view that Mr.Kayombo and his client had time to inform the court of his sickness because the appeal was dismissed on 19th March 2024, but he did not bother to do so until the appeal was dismissed, that is when he came up with the explanations narrated in this Ruling. 5 An order restoring a suit or application is among the discretional orders that this court can issue upon the applicant, giving good reasons for non- appearance. In this Ruling, I have already pointed out that the appeal was dismissed because the appellant abandoned it by not appearing in court for three consecutive court sittings. Parties to a case are responsible for diligently prosecuting their case. Their appearance in court is necessary in every court session/sitting, whether the case is scheduled for hearing, mention, or necessary orders. In fine, this court finds that the applicant has not adduced sufficient reasons to move this court to exercise its discretion in his favor. Thus, the application is dismissed with costs. Dated at Dar es Salaam this 25th day of February 2025 B.K.PHILLIP JUDGE 6 7