familia ya mlandidi said vs abdalah makasi 2020 tzhclandd 142 8 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) A T PAR ES SALAAM LAND APPEAL NO. 193 OF 2018 c A rising from the judgm ent o f the Kibaha D istrict Land and Housing Tribunal as p e r Mbuga, Chairm an in Land A ppeal No. 135 o f 2013) FAMILIA YA MLAMDIDI SAID (KASIMU HUSSEIN) MSIMAMIZI WA MIRATHI...............................APPELLANT VERSUS ABDALLAH MAKASI ............. ........................RESPONDENT MAIGE, 3 RULING The appellant is, in this appeal, questioning the decision of the District Land and Housing Tribunal for Kibaha ("the first appellate tribunal") which sustained the decision ward tribunal for Bwilingu ("the trial tribunal") declaring the respondent herein the lawful owner of 1 V i acres land situated at Chalinze ("the suit property"). It is a fact that, while the impugned decision was delivered on 26/02/2015, the instant appeal was filed on 14h December 2018. It was after expiry of a period of more than two years from the date of the decision. Therefore, the respondent has raised a notice of preliminary objection challenging the appeal for being time barred. In his submissions through his advocate Demetrius Masala, the appellant has urged the Court to dismiss the appeal for being time barred. The appellant would have rebutted the plea of time limitation in his rejoinder submissions. Though duly represented by Mr. Desidery IMdibalema, learned advocate, the appellant opted, for the reason better known to himself, not to make any comment on the issue. The obvious inference is that he does not have any defense. I take it so. The question raised by the respondent appears to be apparent. The time limit for filing an appeal from a decision of the District Land and Housing Tribunal is 60 days from the date of the decision. This is in accordance with the express provision of section 38 of the LDCA. Linder the proviso to the respective provision, this Court may, upon good cause being shown, extend time within which to prefer an appeal. The power is however exercisable upon application. In the memorandum of appeal, I have noted, there was attached a copy of a memorandum of appeal No. 37 of 2016 involving the same parties and against the same judgment. It appears to have been filed on 21st March 2016. It was hardly 30 days from the date of the decision. There has also been attached therein an order of Madame judge Makuru dated 08/11/2018 marking the said appeal withdrawn with a liberty to refile. The prosecution of the previous appeal could perhaps justify the delay. The justification is nevertheless not automatic. Before filing the appeal, the appellant should have sought and procured a grant for extension of time so to do. He did not. In the premise, I have not hesitation to hold that the appeal is time barred. In the circumstance of this matter and considering the power I have under section 52 (2) (b) of the LDCA, I find that an order striking out the appeal is the most appropriate. The appeal is henceforth struck out with costs. It is so ordered. I. MAIGE JUDGE 08.05.2020 Ruling delivered in absentia during to COVIC-19 this 8th day of May 2020 . JUDGE 08.05.2020 ORDER: Parties be notified. I. MAIGE JUDGE 08.05.2020