margreth j olambo vs agnes kalundwa 2023 tzhclandd 16799 24 august 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 449 OF 2023 (Arising from Taxation Cause No. 241/2022, Land Division) MAGRETH J. OLAMBO................................................................. ...APPLICANT VERSUS AGNES S. KALUNDWA.................................................................. RESPONDENT RULING 22-24 August, 2023 E.B. LUVANDA, J The Applicant above named filed this application moving this Court for an order that, this Court pe pleased to extend time within which the Applicant may file a reference against the decision of the Taxing Officer in the above named taxation cause. The reason for delay is contained in paragraph two of the affidavit in support of the application, being due to financial hardships as the Applicant has been without employment for a period of over two years and given her position as the sole provider of her family; overwhelming chances of success and illegality. In the counter affidavit, the Respondent made an evasive denial regarding the Applicant status of unemployment. She stated that there is neither i illegalities nor irregularities on the impugned ruling. She stated that she will be prejudiced by the grant because she will continue to incur loss for any further proceedings. Mr. Luqman Hamid Nassor learned Counsel for the Applicant, submitted that the Applicant was aggrieved by the decision but given her financial position and the fact that she is a lay person she failed to acquire legal representation to act on the matter within the appropriate time. He submitted that the delay from 10/05/2023 when the decision was delivered to 24/07/2023 when this application was filed was due to the fact that the Applicant is a retiree lay person with financial woes. He cited the case of Henry Erasto Nginila t/a Nginila Office Solutions and General Supply vs Ramani. I O Company Limited, Misc. Commercial Application No. 89/2023, page 5. The learned Counsel submitted that the Respondent claimed a bill of 19,414,000 and the Taxing Master (sic, Officer) awarded 1,500,000 contrary to the requirement of Order 48 of GN 263 of 2015, which provides that a party is not entitled to costs when more than one sixth of a bill of costs exclusive of costs is disallowed by the taxing master. Ms. Kapufi Attorneys made a reply on behalf of the Respondent, submitted that the Applicant failed to account each day of delay contrary to the 2 requirement of application for extension of time. He submitted that the Applicant failed to prove her financial incapacity and tried to mislead the court that she failed to acquire legal representation while she is enjoying the legal service of the same Counsel. He submitted that it is not true that each retiree is financially incapable, arguing that the Applicant failed to prove her financial incapacity. He cited Wambele Mtumwa Shahame vs Mahoamed Hamis, Civil Reference No. 8/2016 CAT. The learned Counsel submitted that it is clear in the impugned ruling that the amount awarded is only those (sic, costs) incurred in this court and not of the Tribunal. Herein the reasons for delay were explained to be due to financial constraint on the part of the Applicant who is retirement for over two years. As I have said at the outset, this fact was not seriously contested by the Respondent in the counter affidavit. However the position of the law is that, financial constraint is not among the consideration for granting extension of time. In Wambele Shahame (supra) at page 11, the apex Court made clear this position, I quote, 'Ms regards the issue of financial constraint, again that is not a sufficient reason for extending the time as was held in the case 3 of Yusufu Same & Another vs Hadija Yusufu, Civil Appeal No. 1/2002 where the Court stated as hereunder:- "We are aware that financial constraint is not sufficient ground for extension of time. See Zabitis Kawuka vs Abdul Karim, (EACA) Civil Appeal No. 18 of1937" The Applicant did not file a rejoinder to counter this position by the Apex Court, therefore it is taken as the law at the moment. On illegality, the learned Counsel for Applicant argued that the Respondent claimed a bill of 19,414,000 and the Taxing Master (sic, Officer) awarded 1,500,000 contrary to the requirement of Order 48 of GN 263 of 2015, which provides that a party is not entitled to costs when more than one sixth of a bill of costs exclusive of costs is disallowed by the taxing master. To my view, the argument by the learned Counsel for Respondent to the effect that the amount taxed excluded a bill incurred at the tribunal, is a correct stance. At page 4 of the impugned award, the Taxing Officer made the following obiter dictum, I quote, 'It should be noted that this bill of costs is charged at the court that awarded the same. It is dear from the outset that the decree holder claims for costs spent at the Tribunals, they cannot be claimed at this court' 4 V- Therefore, the argument of the learned Counsel for Applicant who claimed that there is an illegality regarding the award taxed below sixth percent of the bill presented, is a misconception. The application is dismissed. I will make no order for costs. E.B. LUVANDA JUDGE 708/2023 Ruling delivered in the presence/of Mr. Luqman Nassor learned Advocate for Applicant and Respondent in person. E/B^LUVANDA PIUDGE 724/08/2023 5