20121022 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 7 OF 2011 (Appeal from the ruling and orders of the Kinondoni District Court (Kiwonde, RM) dated 27/9/2011 in Criminal Application No. 5 of 2011) DAVID KAALE (as Administrator of the Estate of ROBERT KAALE) .............................. APPELLANT VERSUS BEATUS JOHN .............................................................. RESPONDEN:_:_T-=------- Date of last Order: 30/07/2012 Date ofJudgment: 22/10/2012 JUDGMENT Fauz Twaib, J: David Kaale, the Appellant is the son and Court-appointed administrator of the estate of the late Robert Kaale, deceased. The deceased owed the Respondent the sum of Tshs. 240,000/=. The money was paid to the deceased as advance payment for the supply of certain business premises. The deceased defaulted payment. The Respondent then filed Criminal Case No. 627 of 2006in the Primary Court at Magomeni. He charged the deceased with obtaining money by false pretences. The deceased was found guilty. He was sentenced to pay a fine of 20,000/= or imprisonment for 4 months in default. He was also ordered to compensate the Respondent by paying him the 240,000/=. Apparently, the deceased did not paythe compensation. The Respondent then filed an application for execution of the Court's orders. He prayed for attachment and sale of the property known as MZS/MDZ/568- situate at Mdizini, Manzese, Dar es Salaam. As a result, the property was attached Page 1 of 3 •' '. . . . . . . , ,<,. ...... ' .. and sold by public auction on 2nd September 2007. The buyer was one Mrei:na, a neighbour. The deceased then filed an application in the District Court Land Tribunal. The Tribunal correctly dismissed the application for lack of jurisdiction. Mr. Kaale had in the meanwhile passed away. Mr. Mrema then sought to evict the Applicant and the other members of the deceased's family. The Applicant approached Mr. Mnzava, learned advocate, who filed the present application at the District Court, Kinondoni. Since the time for filing appeal had already expired, counsel first applied for extension of time to do so. The District Court (Kiwonde, RM) refused to grant the application. It ignored the argument that since the Applicant had first filed bJs_appJicatio _ J __ _ _ _ __ in the wrong forum (the District Land and Housing Tribunal) and not the District Court which had jurisdiction, the deceased falls within the exceptions set out in section 21 of the Law of Limitation Act, Cap 89 (R.E. 2002). The learned RM found that the mere fact that the Primary Court was in error was not sufficient cause to entitle the Appellant to extension of time. The Applicant has thus filed the present appeal challenging the District Court's findings. The first two grounds of appeal are sufficient, in my view, to dispbse of -nis appeal. Tney fault the District Court's findings that rejected the argument that the Applicant had sufficient cause for extension of time because he was at all times, bona fide, prosecuting his appeal in the wrong forum. This argument is founded on section 21 of the Law of Limitation Act (supra). Secondly, there was the claim, which was argued extensively by Mr. Mnzava in support of this appeal, that there are glaring irregularities and errors of law in the proceedings of the Primary Court that need to be rectified. It is not upon this Court to consider the merits. of those arguments at this stage. I would leave them for determination by the District Court. Page 2 of 3 For the above reasons, I allow this appeal. I grant the Applicant extension of time to file~appeal to the District Court as prayed. Each party to bear its- own costs. DATED at DAR ES SALAAM this 22 nd day of October2012. 22 nd october 2012 Delivered in Court this 22 nd day~o~f~O~c~to~b~ee'.!..r=-'20~1~2=·_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 22nd October2012 Page 3 of 3