t1 GODFREY MGIMBA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA DISTRICT REGISTRY OF MBEYA AT MBEYA MISC. LAND APPLICATION NO. 10302 OF 2024 (Arising from Extended Jurisdiction Land Appeal No. 7 of 2023, High Court of Tanzania at Mbeya Land Appeal No. 96 of 2022, Originated in the District Land and Housing Tribunal for Mbarali at Rujewa ni Land Application No. 15 of 2022) GODFREY MGIMBA.......................................................... APPLICANT VERSUS MARIO LUKAS KASAMBALA RESPONDENT RULING 13th August 2024 TIGANGA, J: When this case was scheduled for hearing, I noted that it was an application seeking to restore the Land Appeal case which was initially filed to this court as Land Appeal No. 96 of 2022 before it was transferred to the Magistrate with extended Jurisdiction and assigned a new case Registration Page 1 of 4 Number Ext. Jurisd. Land Appeal No. 07 of 2023; and assigned to Hon, Z.D. Laizer (PRM-Ext. Jurisd.) Having so noted, I directed the parties to come and address me on whether having been transferred to the Resident Magistrate with extended Jurisdiction and assigned a new number and after the appeal had been dismissed before the court of Resident Magistrate Extended Jurisdiction, it was proper for the applicant to apply for restoration of the to this court, instead of filing the same to the Resident Magistrate Court (Extended Jurisdiction). That directive was made on 06/08/2024 before the court had adjourned the case to afford the learned Advocate to appear and address the court on that issue. When the Advocate appeared, she said he had not found any new position but she believed that the application for restoration can be filed to the High Court, and the High Court has powers to entertain it. Having heard what the counsel has said, and having conducted brief research, on where the consequential application arising from the appeal or a case transferred to be heard by the Magistrate with extended jurisdiction, should be filed. I realized that at least, there are two Schools of thought by the Court of Appeal, in the Case of Damas Wella vs The Republic, Page 2 of 4 Criminal Appeal No.513 of 2015 (Decided on 10/11/2017) (CAT-Mmila, JA) and Rashidi Mtemi vs The Republic, Criminal Appeal No. 129 of 2012 decided on 23/09/2013 (CAT-Kimaro, JA) it was held that the powers under section 45(2) MCA are only for transferring appeal not applications, therefore the law does not provide for the applications amongst the matter which may be transferred to the Resident Magistrate with extended jurisdiction. The second school of thought is in the decision of Bahati Ndunguru vs The Republic, Criminal Appeal No. 519 of 2015 CAT (Lila, JA) decided on 11/10/2017, in which it was held inter a/iathat, when a case is transferred to the Resident Magistrate Court to be heard by the Resident Magistrate with extended Jurisdiction, nothing remains in the High Court. The court went on to hold that, where an appeal lays from a subordinate court exercising extended powers, that subordinate court, not the High Court has powers to hear all other subsequent applications including extending time for giving not only the notice of appeal but also granting an application for leave to appeal as well as certifying the point of law. In this application what is at stake, is an application to restore the dismissed Extended Jurisdiction Land Appeal No. 07 of 2023. In my view and while guided by the second school of thought elaborated herein above. I am of the firm view that the application to restore the dismissed appeal Page 3 of 4 must, as a matter of procedure be filed before the court which dismissed the appeal sought to be restored. Further to that, even logic and common sense dictate that this court cannot restore an appeal before the court of Resident Magistrate, it is that very court before which the appeal was dismissed that should receive, register, and entertain the application for setting aside the dismissal order and consequently restore the dismissed appeal or otherwise as it deems fit. That said, I find this application to be wrongly filed before this court, for this court has no jurisdiction to entertain it, for once the case that was dismissed and for which this application was made was transferred to the resident magistrate Court to be heard by the Resident Magistrate with extended Jurisdiction, then nothing remained in the High Court. That said, the application at hand is struck out for want of jurisdiction of this court. Since this issue was raised by the Court suo moto, each party is to bear its costs. It is so ordered. DATED and delivered at MBEYA on this 13th day of August 2024. JUDGE Page 4 of 4