Ben Marechela 7 Others vs Martha Masanjaadminstratri of the Estate of the Late Masanja Milanga Mics Land Case Appl 159 of 2022 2022 TZHCLandD 604 29 June 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 159 OF 2022 (Originating from Land Case No. 105 of 2021, before Hon. Mwenegoha,J.) BENI MARECHELA APPLICANT MAGRETH OBAKO APPLICANT ABDUL MGUMBA APPLICANT KULWA TIMOTHEO® KULWA KUKU 4™ APPLICANT MUSONGOLO HAMISI 5™ APPLICANT JOSEPH KIBWINA APPLICANT PATRICK MWASAMANGE 7™ APPLICANT ELINISTO EDWARD 8™ APPLICANT VERSUS MARTHA MASANJA (Administratix of the Estate of the late MASANJA MILANGA) RESPONDENT RULING Date ofLast Order: 14. 06.2022 Date ofRuling: 29.06.2022 T. N. MWENEGOHA,3. Under Order IX Rule 7 of the Civil Procedure Code, Cap 33 R. E. 2019,the applicants have requested this court to vacate its order to proceed ex- parte, given against them in Land Case No. 105 of 2021. The application has been supported by the affidavit of Mr. Tumaini Mgonja, counsel for 4"^ - 8"" applicants. On the other hand,the respondent, Martha Masanja through her advocate Goodluck Charles has objected the application for reasons that it is time barred. The counsel for the respondent maintained that, according to Part III, Item 5 of the Law of Limitations Act, Cap 89, R. E. 2019, the case at hand was to be filed within 30 days. That, the impugned order was given in December 2021 and the instant application was filed In April 2022, more than 120 days after the said order was given, hence it is time barred. In reply, Mr. Mgonja on behalf of the 4"^ to B'*' respondents, maintained that, his clients became aware of the order in March 2022. Therefore, the computation of time against them should start from the date they became aware of the existence of the said order, on the 15"^ March 2022. That, this application was filed on the 13"^ of April 2022, hence the same is within time. He relied on Section 6(i) of the Limitation Act, Cap 89 R.E 2019. In his rejoinder, the respondent maintained that, the time limitation starts to run on the date when the order was issued. I have considered the arguments of the counsel for the parties the considerations they deserve. The issue at hand is whether the instant application is within time or not. The arguments of the respondents counsel have relied on Part II Item 5 of the schedule which provides that, "For an order under the CivilProcedure Code setaside a decree ex parte.... thirty days". As for the 4"^ to 8"^ applicant's counsel, his arguments are that, the time to apply for this application accrued when the 4"^ -8''' defendants became aware of the existence of the order in question, as per Section 6(i) of the Limitation Act, Cap 89 R. E. 2019. I'm afraid to say that, the application of Section 6(i) of the Limitation Act, Cap 89, R. E. 2019 in these circumstances is misconceived. The said provision is about instruments or contracts. It does not apply on decrees and orders of the courts. As argued by the respondent's counsel, computation of time for court orders or decree start to run from the date the same is delivered and not the day when the said order was communicated to the persons concerned. Therefore, this application is time barred. The objection has merit and I sustain it accordingly. The application is hereby struck out with costs. OrdereiijeGQcdingly. Op o P. c 4^ T. N.^ENEGOHA 5 JUDGE s m 29/06/2022 o V