englibert baltazar mkasange mgeni vs abidius malekela 2023 tzhc 20445 23 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SONGEA AT SONGEA MISC. LAND APPLICATION NO. 14 OF 2023 EGLIBERT BALTAZAR MKASANGE MGENI (As an Administrator of the Estate of the Late BALTAZAR MKASANGE MGENI) ……..……..………....... APPLICANT VERSUS ABUDIUS MALEKELA …………………………………………….…… RESPONDENT (Arising from the decision of this Court in Land Appeal No. 12 of 2023) RULING 23rd and 23rd August, 2023 KISANYA, J.: This is an application for leave to appeal to the Court of Appeal against the decision of this Court (Luvanda, J.) in Land Appeal No. 12 of 2023. The application is predicated under section 5(1)(c) of the Appellate Jurisdiction Act, [Cap. 141, R.E. 2019], Rule 46 (1) of the Court of Appeal Rules, 2009 (now R.E. 2019) and section 47(1) of the Land Disputes Courts Acts [Cap. 216, R.E. 2019]. Supporting the application is an affidavit sworn on 11th August, 2023 by Englibert Baltazar Mkasange. When the matter came up for hearing, the applicant was represented by Mr. Nestory Nyoni, learned advocate. 1 The learned counsel informed the Court that the respondent was yet to be serviced. After a short dialogue with the bench, he conceded that the application was filed out of time. He thus, prayed for the application to be withdrawn. It is imperative to state here that, the time within which to apply for leave to appeal to the Court of Appeal is set out under rule 45(a) of the Rules which prescribes: “45. In civil matters:- (a) notwithstanding the provisions of rule 46(1), where an appeal lies with the leave of the High Court, application for leave may be made informally, when the decision against which it is desired to appeal is given, or by chamber summons according to the practice of the High Court, within thirty days of the decision; or (b) N/A” From the above cited provision, an application for leave to appeal to the Court of Appeal is required to be lodged in this Court, within thirty (30) days from the date on which the decision to be challenged was handed down. 2 As stated earlier on, the chamber summons shows that the decision subject to this application was delivered on 15th June, 2023. That being the case, the applicant ought to have filed his application for leave to appeal to the Court of Appeal on or before 15th July, 2023. I am aware that 15th July, 2023 happened to be Saturday. Therefore, pursuant to section 60(1)(e) and (2) of the Interpretation of Laws Act [Cap. 1, R, E. 2019], the last day within which to file the application ended on the next working day, which was 17th July, 2023. However, it was on 11th August, 2023 when the supporting affidavit was sworn by the applicant. Thereafter, this application duly filed on 15th August, 2023 when the court filing fees was paid. I therefore, agree with Mr. Nyoni that, the application was filed out of time prescribed by rule 45(a) of the Rules. In terms of the settled law, each day of delay must be accounted for. Otherwise, this Court has no mandate to entertain an application which is time barred. Having held that the application is time barred, I find it incompetent before this Court. In consequence, it cannot withdrawn as prayed by Mr. Nyoni. It is trite law that the proper remedy in respect of an incompetent matter is to strike out the same. [See the case of Ghati Methusela vs Matiko Marwa Mariba, MZA Civil Application No. 6 of 3 2016 (unreported)] In view thereof, this application is hereby struck out. Since the respondent was yet to be served, I make no order as to costs. DATED at SONGEA this 23rd day of August, 2023. S.E. KISANYA JUDGE 23/08/2023 Ruling delivered this 23rd day of August, 2023 in the presence of Mr. Nestory Nyoni, learned advocate for the applicant and in the absence of the 2nd respondents. S.E. KISANYA JUDGE 23/08/2023 4