dominic kitego kifigo administrator of the late simon joseph vs sadick msangi another 2022 tzhclandd 12558 4 november 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO.600 OF 2022 (Originating from the decision of the High Court of Tanzania Land Division in Land Case No. 61 of 2021 delivered on 15th December, 2021) DOMINIC KITEGO KIFIGO (As Administrator of the Late Simon Joseph).................... APPLICANT VERSUS SADICK MSANGI.............................................................1st RESPONDENT HAJI SAID MBARAKA..................................... .......... 2ND RESPONDENT RULING Date of last Order: 04.11.2022 Date of Ruling: 04.11.2022 A.Z MGEYEKWA, J This is an application for setting aside the dismissal Order made by this court on 15th December, 2021 in Land Case No. 61 of 2021. The application is brought under Order IX Rule 9, Order XLIII Rule 2, Order 8 Rule 20 (1), (3), and section 95 of the Civil Procedure Code Act, Cap.33 [R.E 2019]. The application is supported by an affidavit affirmed by i Hassan Ally Mfaume, the applicant. The application was not contested by the respondent. The applicant in this application had instituted the said Land Case No. 61 of 2021 before this court. After the institution of the said case, the applicant failed to appear in court for mediation, the file was later remitted to the trial Judge for further steps in which the applicant also did not enter an appearance including on 15th December, 2021 whereas the case was dismissed for want of prosecution. When the parties appeared before this court on 20th April, 2022, Mr. Peter Shapa and Ms. Esther Mahugo, learned counsels appeared for the applicant and the respondent did not show appearance. After physical service of the process was impossible, it was ordered by this court that service be effected by substituted service by way of publication which was served through Mwananchi Newspaper dated 16th October, 2022 yet still, the respondent did not appear and defend the application, consequently, the application was argued exparte. In support of the application, Mr. Shapa urged this court to adopt the applicant’s affidavit and form part of his submission. The applicant’s counsel submitted that the applicant had instituted a Land Case No. 61 of 2021 but that the same was dismissed before this court on 15th December, 2021, for want of prosecution in the applicant’s absence for some time. 2 Mr. Shapa went on to submit that the applicant's absence resulted from the applicant's sickness, the applicant was suffering from cancer where he underwent a serious operation. To bolster his argument Mr. Shapa referred this court to a hospital medical report annexure DK-1, hence the applicant could not appear in Court. The learned counsel went on to submit that thereafter the Court was on vacation, therefore, the applicant was unable to file her application for restoration within time. He went on to submit that in paragraph 14 of the affidavit the applicant stated that he filed an application for an extension of time, however, the same was struck out for being incompetent. He submitted that sickness is a good ground for setting aside a dismissal order from the Court. To buttress his submission he cited the case of Sadru Mangalji v Abdul Aziz Lalani & 2 Others, Misc. Commercial Application No. 126 of 2016 HC. On the strength of the above submission, the learned counsel for the applicant beckoned upon this Court to restore Land Case No. 61 of 2021. I have given a deserving weight to the submission of the applicant’s Advocate. The issue which is the bone of contention in this Application is whether the applicant has adduced sufficient reasons to move this court to restore 61 of 2021. The law requires an aggrieved party seeking to set aside a dismissal order of the court to furnish the court with sufficient 3 reasons for non-appearance when the suit was called on for hearing. It is evident from the affidavit supporting this application that the applicant's failure to appear when the matter was called for hearing is because he fall sick hence he was unable to appear in court to proceed with mediation before Hon. Mkapa, J. I have perused the applicant’s affidavit and found that the applicant has explained the reasons for his non-appearance on 15th December, 2021 specifically in paragraph 2, he stated that sometime in September, to November, 2020 before instituting a case before this Court he underwent a serious prostate operation which made him unable to make a frequent movement. The St. Joseph Hospital - Mbweni chic dated 24th September, 2020, 29th September, 2020, and other receipts proved that the applicant attended medical treatments. I have also considered the fact that sickness is a good cause for restoration of a case, it is the sick person who can express his/her conditions whether he/she has the strength to move, work and do whatever kind of work he is required to do. See the case of John David Kashekya v The Attorney General, Civil Application No. 107 of 2012 CAT (unreported). It is my humble view that, the applicant has amply demonstrated the reason why he did appear in Court on 15th December, 2021 when Land Case No. 61 of 2021 was dismissed. 4 In the final analysis, this application succeeds. The dismissal order is set aside and Land Case No. 61 of 2021 is restored to proceed with the hearing on a date to be communicated to the parties, I make no order as to costs. Order accordingly. DATED at<J&?fe^Sa.laam this 4th November, 2022. EKWA JUDGE 04.11.2022 Ruling delivered on 4th November, 2022 in the presence of Mr. Peter Shapa and Ms. Esther Mahugo, counsels for the applicant. A.Z.MGEYEKWA JUDGE 04.11.2022 5