gladnes hashim ra3ab gardian of nasra hashim rajabu and halima hashimu rajabu vs billionaire john mkeu 2023 tzhclandd 16446 30 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO.810 OF 2022 {Arising from Bill ofCosts No.217of2022, by CM Kisongo} GLADNES HASHIM RA3AB (Suing as Gardian of Nasra Hashim Rajabu and Halima Hashimu Rajabu) APPLICANT VERSUS BILLIONAIRE JOHN MKEU RESPONDENT EX-PARTE RULING Date ofLast Order: 07.03.2023 Date ofRuling: 30.03.2023 T. N. MWENEGOHA,3 The applicant herein sought for an order of extension of time so that she can lodge an Application for Reference out of time, against the decision of this Court [Hon. C. M. Kisongo-DR], vide Misc. Application No.217 of 2021, delivered on 8'" day of November, 2022. The present Application is preferred under Order (1) and (2) of the Advocates Remuneration Order, G.N No. 263 of 2015, and supported by the affidavit of Haji Miosi, the applicant's Advocate. The same was heard by way of written submissions and Ex pdrt6 against the respondent. In supporting his submissions, Mr. Mlosi insisted that, there is an error apparently on the face of record. That, the dismissal order of Hon. C.M. Kisongo - DR is illegal. That, this Court had no power to dismiss an Application for Bill of Costs, hence the Taxing Master acted out of her jurisdiction, thus ultra vires. That, according to Order 68 of the Advocates Remuneration Order, G.N No. 263 of 2015, the taxing master has no power to dismiss the application for Taxation Cause, rather to proceed ex parte in default of appearance of both or either of the parties or to adjourn the case. To fortify on his emphasis, he cited the case of James Anthony Ifada versus Hamis Alawi,Civil Application No. 482/14/2019, Court of Appeal of Tanzania at Shinyanga(unreported). That marked the end of his submission and he prayed for this Court to grant the Appiication. Having gone thoroughly on the arguments of the counsel for applicant in iine with the Affidavit in support of the Appiication, the issue for determination is whether the Appiication has merits or not. In the instant Application, it was contended that, the reason for the appiicant to obtain an enlargement of time is the existence of an illegality apparently on the face of the dismissal order by the taxing master, Hon. C.M. Kisongo - DR. The said illegality was based on Order 68 of the Advocates Remuneration Order, G.N No. 263 of 2015. That, she was not allowed to do so, instead she was supposed to hear and determine the matter ex parte in case of non-appearance of both or one of the parties, or to adjourn the matter to another date. Primarily, I concur with Mr. MIosI that, the law is well settled that the existence of an illegality apparently on the face of an impugned decision is tantamount to a sufficient cause capable of extending the time as it was stated in the case of James Anthony Ifada versus Hamis Alawi, (supra)to that effect. Notwithstanding the aforesaid, I do not see if the intended action by the applicant is a proper remedy. My reason being, the Court's record is clear that the Application for Taxation Cause was dismissed for want of prosecution upon the observation and scrutinization of the taxing master; that the applicant's counsel has lost interest in pursuing his Application. That is to say the bill of costs which is subject of this Application was not heard at all. Thus, filing the current Application in the premise is unimaginable and hence, misconceived. So, even if I proceed to allow this Application, my orders will not be tenable owing to the reasons I have endeavored herein above. If the counsel for the applicant is so interested in his course, he should seek for an extension of time to go after the proper remedies available to him but not on this path that he has chosen to follow. Consequently, I find the application to be wanting in merits and eventually it is dismissed without costs. It is so ordered. T. n„m^egoha iitsi l>l 30/03/2023