david malili vs mwajuma ramadhani 2016 tzca 828 11 july 2016

dlw t o e e a r a ' O F hkppehm. o f t a n z m a m m m ES.RALArVM G3MTL iAP,MJ£CATOO[v! (NO,. 2.H£> GF .ED1 5 t D m m 'MALILI__ ___ __________ ______ ___ ________ _____ &PMOJVWT VERSUS MWA'JHJMA iR-AWAOHaWIKL.__ ____ ______ ______ _______ _____ ..JREBPOWDBNIT (Application for e^iGynsiou lof ttirae to iffie 51 (memorandum o f oppoafl agmrast tire fudgirnHntt 1df 1th,e W t$h Cow it o f Taincania tawtfll (DjviisjonJ ffiDr. M?ka, J dalsad ttiie BIL®1' SM.a;ncih „ MJltfl- in ilWtsc. ftitmfl ,gVnr>e.a1 T&o. 4 .8 o f 2 .0 0 2.7 ** 3 ur>e «c UtL0’ fli%, ',2J0MS KX.MAR®., J,.A .; THhe applicant lost ftfoe .a-pjae^I he iJed in Ifae Lani IDhwsiDia of iifae Miejii Court of Tanzania m Land Appeal Wo..4B of 2013. Aggrieved toy £tet decision he sought for te@we to appeal witoidii was grafted. Me ffieS Utis notice of motton -under RislJe £© «ef Hue Count of Appeal M e s , £009 iin w\iiMh he as seeking for extorejoni ©flSnae 'to i$e a memoraradfcara «af appeal against the decision df the Land ©mMon of tine Migfo Gaunt ,©f Tanzania. ?Wo grounds arc given .tn the splice rtrff irao/friora. filue aeeorwj.»ny,in§ *$l$r£iav!t iff the applicant sworn in support, of the application says at paragraph four Ifoat lie was delayed to file the appeal because documents necessary ifor fi&rcg the appeal, although applied for -Within time* were supplied after Hie lime for filing the appeal in time had lapsed. H ie applicant wrote a letter requesting for the supply of a copy of line judgment and the ruling Which granted him leave to appeal on 27th March, 2015. Despite sending to line Registrar of the Land Division a reminder (letter for due supply of the documents, the same was not supplied until l©th September 2015. The documents he requested have been annexed to the application as Annexture C l (copy of the proceedings for the judgment he wants to 'impugn and the application for leave to appeal), Annexture C2 (a lefer written on behalf of the applicant by the Legal and Human Rights Centre requesting for the supply of the said documents) and C3 ( a certificate of delay excluding the period of the preparation of the said documents froraa 27th March to 10th September, 2015). The 10th September 2015 is the da'fce the applicant was supplied with the documents mentioned. The application seeking for extension of lime was filed on 28th October, 2015. The notice of motion is filed under Rule 48 of the Court of Appeal Rules, 2009. z Tfoe respondent has in her affidavit m reply to the ap^liciatiron opposed #ie application on the ground that: the applicant Iras always ttoe&m negligent in pursuing the proceedings in 1‘he subordinate court. She fotemed ftim for being .negligent and being the source of delay in obtanraiji^g justice. After hearing the parties, perusing the documents !ied by patsies and going through the relevant law involved in the determination d f fttae application, 1 have the following to say. Rule 10 of the Court of Appeal Rules under which the application has been preferred requires flfc applicant to show good cause for the delay in failing to file the appeal iio time. .We was granted Heave to file the appeal on 2ftil March 2M5,. The Land Division of fthe High Court sat as a second appellate m&uifit. The matter between the parties Started in the Ward Tribunal of Segerea.. Among the documents required to form pait of the record of appeal enttar Rule 96(2)(a) of the Cou.it of Appeal (Rules 2009 is the order if any, pvirag the appellant leave to appeal. An appeal has to fee instituted within ckty days. This #s a requirement given by Rule 90(11) of the Court of Appeal Rules 2009,. K fo e iraaquested documents wore supplied to the .applicant iin timef/ the .qppfarit m m (required ito file f c appeol by 2^,1‘ May, 203 S. The. opjulicanl a)«a&i:<aHcl ewdenoe to show 'that fee did root ©btawi One documoite roocessary .ferOiigg the appeal m Jaraie. ifnstod, as per' the certificate of delay he sqpjiJM'IftD the Court shows, i‘foe $D.ci3r;raenfe were supplied to Ihiim on 1011' S e p te tte ;, 21015. Rule i© of the C©mft dF Appeal Routes provides as fellow,s:- ""fihe Courtmay, upon good cause shown, extend the time Himltediby these Rules or by any decision of the High Court &r tribunal for the doing o f any set authorized or required fay ttiese Rute^ whether Ijefore or after expiration o f that time and whether before or after doing ■ofthe ac$; and any reference in these mles to any such time shall be construed as a mference to that time asiso extended. *r Under the drcMfm&tevraoes .She applicant ihas sfaswflta good -caMse fe r failing to iFJIe the ^ppedl wittei sixty days as required !by M e 90 ((£$. days a fe r 27lh Marrito 003.5., he did not have the order graraltmg Mra teaias to appeal, tsf^e proceedings -of the appeal arod Ifae judgment and t o &airee and flfoe -order gratfliii^g jhira flea-we to appeal. TThe ttevmiente are,«ReGeeisgt?y f o r tfae filling of the appeal. When put on the scale of •justice, 'J'he com plaint by the respondent that the applicant has 'been the source oi delsy in what took place in the subordinate courts it has literally no weigM to 'tiie application before the Court. In any event/ the law provides (Tor a HGj'ht to appeal in the matter in contest between the parities. As ttfe •appe'IJant has shown good cause for the delay in filing Hie appeal, ihe 5is granted extension of time to file the appeal out of time. In order to avoid ’f urther hurdles in pursuing the appeal the applicant 'must ensure that it o provis-ions of Rule 96(2) of the Court of Appeal R.u!e§, 2009 are strictly adfaered to. The appeal must 'be filed within lihlnty (30;) days after 'the delivery ©'f this rating. ■DATED at DAR ES SALAAM this 30th day of June, 2016. U.P. K£MARO JU S T IC E O F A P P EA L I certify that this is a true copy of the original. C O U R T O F A PPEAL 'S