20160930 TZHC Arusha

·. . Iti'THE HIGH COURT OF THE UNITED REPUBLI OF TANZANIA ..... IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA DC CIVIL APPEAL NO. 27 OF 2016 (Originating from District Court ofArusha Civil Case No. 3 of 2015) 1 EVA SIZYA. ■• ■ ■ ■ ■• ■ ■■■•■■ .I.I. ■■■•■■■• I ■■ ■ 1 ■ ■■•■•■ I ••• I I 11 ■ I. ■ I ■ I I . I •• ■•■■ •• • APPELLANT {Legal Representative of the Estate Of the late Innocent Gervas} VERSUS MASESA MAFAJA MSHAURI. ................................... RESPONDENT RULING DR. M.OPIYO, J This is a ruling on preliminary objection raised by the respondent that Civil Appeal No 27 of 2016 is hopelessly time barred. On 21 st September, 2016 when the matter was scheduled for hearing, the applicant was represented by Mr. Ngemela learned advocate while the respondent appeared in person unrepresented, arguing the preliminary objection the respondent argued that he filed the Preliminary Objection because the time within which the applicant was given to file his appeal has lapsed, He is already out of time. The respondent added that according to the order by Hon. Judge Massengi of 2/5/2016 he was supposed to file appeal in 14 days but the time lapsed on 16th day of May, 2016, he said he made a follow up and he was told that the order was signed on 17/5/2016 and on 9/6/2016 he paid for and was able to get copy of order in the application for extension of time. So, even counted from the date he got the copies, the 14 days had had 1 elapsed for filing the appeal. He prayed for the appeal to be dismissed for being time barred. Replying to the above submission Mr. Ngemela, counsel for the appellant, argued that the objection has no merit as the judge extended time to be 14 days from the date of receiving the copy of order and the 14 days is counted from when the applicant got the copy. He said, the decision was that the appellant should file appeal 14 days from when he got the order and not from date of the order. He further submitted that, according to ERV Receipt No 10774059the appellant obtained the copy on 27/6/2016 and the appeal was filed on 29/6/2016, that was just 2 days after receiving the copies so he was within time for 12 days. He added that, It is true that after determining the application the judge left for election petition and irrespective of their follow up, they were told the Judge was not around as she was in Election petition up to 26/6/2016. He thus prayed for the preliminary objection to be dismissed. I have given due consideration to the submissions of both parties, the issue for determination is whether the appeal is time barred, the court record shows that, the order of this court Massengi J, dated 02/05/2016 allowed the applicant to file his appeal out of time within fourteen day after obtaining the copy of the order granting him extension of time, it is true that the 14 days were counted from the date of receiving the copy of the order but the applicant was supposed to make a follow up of the same to 2 . ' ' /' I get the copy as soon as it was ready. Manifested, the applicant did not do so, hiding behind unfounded and unsubstantiated reason that the judge left for election partition in Dar Es Salaam before signing the respective order. From the circumstances of this case the 14 days started to run from the date when the document was ready for collection and not whenever the applicant is or was willing to obtain the same. The applicant was supposed to make a close follow up in order to know if the documents were ready so that he could collect the same as early as possible to facilitate his appeal. In the case at hand it seems the respondent was the one who was making a follow up that is why he obtained the order for almost three weeks before the applicant. It is true that the court has discretionary power to extend the time to file appeal or application out of time but parties are obliged to make a follow up and not to relax until the extended time lapse as it is the case in this matter, I agree with the respondent that the present appeal is time barred as the order of this court extending time was that the applicant was supposed to file his appeal 14 days from the date of receiving the documents, but the applicant who negligently failed to make a follow up to obtain the same on time slept on his rights. That said, the preliminary objection is sustained, the appeal is dismissed with costs. (Sgd) DR.M.OPIYO JUDGE 27/09/2016 3 I hereby certify this to be a true copy of the Original. I ' !' 4 I