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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA LAND APPEAL NO 16871 OF 2024 (Originating from the District Land and Housing Tribunal for Mbeya at Mbeya in Land Application No. 18/2023) FRED STAFORD…………………………………………………APPELLANT

VERSUS LAINI KIBIBI………….………..…………….……………..RESPONDENT

RULING Date: 20 September 2024 & 22 November 2024 SINDA, J.: The appellant is aggrieved and wishes to challenge the decision of the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT). The brief facts of the case are that the appellant and respondent herein both claim ownership over a land located in Masyeto street, Nsenga village, Swaya ward in Mbeya rural district within Mbeya region (the Disputed 1 Property). The Disputed Property is said to be bordered by a Moravian church to the south, Sista Bamia to the west, Andolile Mwakyusa to the east and Lenadi Malongo Mwanilonga to the north. The matter was brought before the DLHT where the respondent successfully sued the appellant. Dissatisfied with the decision, the appellant brought this appeal with a total of five grounds. Before the appeal was heard on merit and in his reply to the memorandum of appeal, the respondent raised a preliminary objection on a point of law (the P.O): 1. That, the appeal is hopelessly time barred contrary to Section 41 (2) of the Land Dispute Courts Act [Cap. 216 R.E 2019]. It is thus upon this court to determine the P.O put forth, before deciding whether or not to continue determining the appeal on merit. At the hearing of the P.O, the appellant appeared in person unrepresented. Whereas the respondent was represented by Ms. Jenifer Joely Silomba, learned counsel. Submitting for the P.O

Ms. Silomba argued that the appellant filed the memorandum of appeal out of time as stipulated under Section 41 (2) of 2 the Land Disputes Courts Act, Cap. 216 R.E 2019 (the LDCA). That, the law requires an appeal from the DLHT to be filed within forty-five days from the date of decision. She added that the appeal being time barred should be dismissed as per Section 3 (1) of the Law of Limitation Act [Cap. 89 R.E 2019] (the LLA). She continued that the appellant was supposed to file his memorandum of appeal within 45 days from the date of certification of the copy of judgment. That, the judgment was read on 30 April 2024 and signed by the chairman on 15 May 2024. Therefore, the appellant filed the memorandum of appeal on 15 July 2024 after a lapse of sixty days since judgment. The counsel was of the view that the court cannot entertain the appeal. She cited the case of Anderson Mwankunsye vs. Martin Ndunguru, Misc. Land Application N0. 119 Of 2020 [Tanzlii] and that of MM Worldwide Trading Company Limited and 2 Others vs. National Bank of Commerce Limited, Civil Appeal 258 of 2017 [2021]. In his reply submission, the appellant argued the P.O raised by the respondent goes contrary to what is provided in the case of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) 3 EA 696. That elaborated, a P.O cannot be raised if any facts need to be ascertained or if

judicial discretion is required. The appellant added that at the DLHT, the matter was decided on 30 April 2024. On 15 May 2024, the chairman certified and signed copies of proceedings and judgment were provided to him. After necessary payments, the appellant filed the appeal electronically on 29 June 2024 which was within the statutory time limit of 45 days. Supporting his argument, the appellant provided Section 19 (2), (3) and (5) of the LLA. Together with the cases of: Alex Senkoro & 3 Others vs. Eliambuya Lyimo, Civil Appeal No. 16 of 2017 [TANZLII], Mary Kimaro vs. Khalfani Mohamed [1995] TLR 202 and that of Chesco Mduda vs. Filipo Komba, Land Appeal Case No. 28/2023 [TANZLII]. Miss Silomba did not file any rejoinder. After thorough evaluation of the arguments, laws and case laws, the only issue to be determined is whether the appeal is time barred, subject to the P.O raised. To begin, I wish to reproduce the provision of Section 41 (2) of the LDCA, that provides: 4 “41 (2) An appeal under subsection (1) may be lodged within forty five days after the date of the decision or order: Provided that, the High Court may, for the good cause, extend the time for filing an appeal either before or after the expiration of such period of forty five days.” From the appellant submitted that the DLHT judgment was delivered on 30 April 2024 whereas the copies were certified on 15 May 2024

and that is when they were supplied to him. He continued that on 29 June 2024 he submitted his appeal electronically. I took it upon myself to revisit the records of the DLHT. After keen perusal it came to my knowledge, that what is asserted by the appellant is indeed what transpired at the DLHT. That the necessary documents to lodge an appeal, were not timely provided to him and resulted to the said delay. However, it is trite law that the time the appellant waited to obtain copies of proceedings, judgment and decree should be excluded from the limitation period for filling an appeal. As seen under Section 19 (2) and (3) of the LLA, that reads: (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgment, the day on which the judgment complained of was delivered, and the 5 period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded. (3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall be excluded.” The same was provided in the case of Alex Senkoro & 3 Others vs. Eliambuya Lyimo (Supra), to wit: “We entertain no doubt that the above sub-sections expressly allow automatic exclusion of the period of time requisite for obtaining a copy

of the decree or judgment appealed from the computation of the prescribed limitation period. Such an exclusion need not be made upon an order of the court in a formal application for extension of time. Indeed, that stance was taken recently in Mohamed Salimini vs. Jumanne Omary Mapesa, Civil Appeal No. 345 of 2018 (unreported) where the Court affirmed that section 19 (2) of the LLA obliges courts to exclude the period of time requisite for obtaining a copy of the decree appealed from.” The time should therefore start to count, a day after the said documents have been certified and handed over to the appellant. As a result, in this matter, the days start to count a day after the appellant received the required documents to lodge the appeal, that is on 16 May 2024 to when he submitted the appeal on 29 June 2024. This amounts to exactly 45 days. Thus, the appellant is within the statutory period to file the appeal, after the exclusion of the waiting period. 6 In consequence therefore, I proceed to overrule the preliminary objection raised by the respondent’s counsel. The court will proceed to hear the appeal on merit. It is so ordered. DATED at MBEYA on this 22 day of November 2024. A. A. SINDA

JUDGE 7