GETRUDA DIONIZ TENGANIZA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL APPEAL NO. 15319 OF 2024 (Arising from Misc. Land Application No. 91 of 2023 of Sengerema District Land and Housing Tribunal) GETRUDA DIONIZ TENGANIZA (The Administratrix of the estate of the late Tenganiza Michael Mkenyege)…………………………..………..……………..APPELLANT VERSUS PETRO MASHAKA…………………………………………………………………..…RESPONDENT JUDGMENT 19th August & 19th August 2024. Kilekamajenga, J. The appellant filed a Land Application No. 11 of 2023. The case was scheduled for hearing on 17th August 2023 but the appellant mistakenly appeared on 18th August 2023 and found the case dismissed for want of prosecution. The appellant lodged Misc. Land Application No. 91 of 2023 sought to restore the dismissed case but the same application was also dismissed hence this appeal. The appellant appeared before this court with one ground that, the District Land and Housing Tribunal erred in law and fact to dismiss the application for the mere reason that the applicant failed to advance to persuade the court to set aside its dismissal order. This court promptly scheduled the case for hearing; the appellant appeared in person and was also represented by the learned advocate, Mr. Erick Katemi 1 whereas the respondent appeared in person and was represented by the learned advocate, Mr. Denis Kahangwa. Before this Court, Mr. Katemi narrated that the appeal No. 15319 originates from the decision of the District Land and Housing Tribunal of Sengerema in Application No. 11 of 2023 which was dismissed for want of prosecution on 17th August 2024. The appellant applied for restoration of the case but the same was also denied hence the instant appeal. The appellant lodged the instant appeal on 26th June 2024 challenging the decision of the District Land and Housing Tribunal because the appellant had a genuine reason for non-appearance. He objected the decision of the District Land and Housing Tribunal for the following reasons: according to the appellant’s affidavit, she believed that the case was coming on 18th August 2024 instead of 17th August 2024. The appellant had therefore good reasons for restoring the case. Second, the appellant frequently appeared before the tribunal before the case was dismissed. She was therefore not negligent. Lastly, the chairman of the tribunal ought to consider the nature of the dispute before dismissing the application. Based on these reasons, the counsel prayed for the court to allow the appeal and order the restoration of land Application No. 11 of 2023 for determination before another chairman. 2 In response, Mr. Kahangwa for the respondent had the following to say: though the respondent has failed to show good reason for non-appearance something which amounts to lack of diligence, for the interest of justice, he supported the appeal for the matter to be restored and be determined before another chairperson. Thereafter, there was no rejoinder. The closer consideration of the matter at hand leaves no doubt that the chairman of the tribunal ought to have invoked his/her discretion to restore the case for determination on merit. It is evident that the appellant mistakenly conceived the date of 18th August 2023 to be the date of hearing instead of 17th August 2023. Furthermore, as argued by the appellant’s counsel, the appellant appeared on several hearing dates before the case was dismissed for want of prosecution. I have gone further to consider the nature of the dispute and for the interest of justice, the case should be restored for determination. I hereby allow the appeal and order the restoration of Land Application No. 11 of 2023 for determination on merit before another chairperson. Each party should bear his/her own costs. It is so ordered. DATED at Mwanza this 19th Day of August, 2024. 3 Ntemi N. Kilekamajenga. JUDGE 19/08/2024 Court: Judgment delivered this 19th Day of August 2024 in the presence of the appellant and her advocate, Mr. Erick Katemi, and before the respondent and his advocate Mr. Denis Kahangwa. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 19/08/2024 4 5