Misc

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND APPLICATION NO. 8400 of 2024 HEDWIGA HERMAN LORRY ............................ APPLICANT

VERSUS AL SAHI INVESTMENT LIMITED..................................... .1st RESPONDENT ABDUEL GILEAD KITURURU T/A AMICUS ATTORNEYS ....2nd RESPONDENT MAK AUCTION MART...................................................... 3rd RESPONDENT Date of the last order: 20/05/2024 Date of Ruling: 30/05/2024

RULING A. MSAFIRI, J This is an application for extension of time within which to file an appeal against the ruling and order of the District Land and Housing Tribunal for Ilala (at Mwalimu House) (herein the trial Tribunal), made by Hon. M. Mgulambwa, Chairperson in Misc. Application No. 893 of 2021 dated 17//5/2023. The application was made under Section 41(2) of the Land Dispute Courts Act, Cap 216 [R.E. 2019] and Section 14(1) of the Law of Limitation Act Cap 89 [R].E. 2019]. i The application was made by way of chamber summons supported with an affidavit deponed by Hedwiga Herman Lorry (the applicant) and the same was opposed by counter affidavit deponed by Mazaher A. Yusuf (Principal Officer of the 1st respondent). The disposal of the application was orally made before me on 20/5/2024 whereas, the applicant was represented by Mr. Mutakyamirwa Philimon, learned Advocate, Ms. Mariam Saleh learned Advocate appeared for the 1st respondent, the 2nd respondent was represented by Mr. Rodrick Mbise, learned advocate who did not contest the application. The hearing proceeded exparte against the 3rd respondent whereas this court was satisfied with proof of service to the 3rd respondent that he was duly served and refused service. Mr. Mutakyamirwa learned Advocate was the first to kick the ball rolling, whereas he prayed to adopt the contents of the applicant's affidavit.

He referred this court to paragraphs 5 and 6 of the said affidavit and submitted that the applicant filed Land Appeal No. 297 of 2023 on time but it was struck out on legal shortcomings. He said that the delay in filing the appeal was not an actual delay but that it was the technical delay. He supported his point by citing the cases of Fortunatus Marsha vs Shija & Another (1997) TLR at page 154, Eliakim Swai & Another Thobias 2 Karawa Shoo, Civil Application No. 2 of 2016 at page 11, Oketch Boaz Odhiambo & Another vs Salma Idd Kanyoroto at page 7 (TANZLII) He further stated that after first appeal was struck out, and after a copy of ruling was supplied to the respondent, he immediately filed this application. He prayed that this application be granted. On reply, Ms Saleh learned Advocate for the 1st respondent contended that the counsel for the applicant focused on submitting on technical delay and that he has not accounted on other factors as stated in the case of Mega Builders Ltd vs D.P. I Simba Ltd, Civil Application No. 319/16/2020 at page 8. She added that the applicant pleaded to have written a letter requesting for a copy of the ruling which was supplied on 16/4/2024, but the letter was not attached to this application to prove the same and it is not clear as to whether the ruling was real supplied to the applicant on 16/4/2024. She pointed that the applicant has not

accounted for the days of delay from 29/3/2024 to 15/4/2024. She said that at paragraph 9 of the affidavit, the applicant admitted to have acted negligently in framing grounds of appeal causing the same to be struck out. To cement her point, she cited the case of Selina Jahangir vs. Nyakutonya N.P.F Co. Ltd, Civil Application No. 47 of 2020 where it 3 was held that no negligence or lack of diligence constitutes no sufficient reason to warrant extension of time. She prayed that the application be dismissed with costs. On rejoinder, Mr. Mutakyamirwa reiterated the submission in chief and further added that the applicant has accounted for the days delayed from 27/3/2024 to 14/4/2024 when this application was filed and that the delay was technical and that technical delay is a sufficient cause. He argued that the applicant's negligence was penalised by striking out his appeal, hence that it cannot be used to punish the applicant in this application. After a careful scrutiny to the parties' submissions, it appears that the applicant initially lodged the intended appeal within the time but it was struck out on legal technical grounds. The appeal was struck out on 27/3/2023. On the same date the applicant wrote to the court requesting for the copy of the ruling for the appeal purposes. It was received by the court on 28/3/2023. That the requested copy was availed on 16/4/2024 and on

17/4/2024, the applicant filed the application online and it was finally filed on 18/4/2024. This shows that immediately after the incompetent appeal was struck out, the applicant did not delay in pursuing his right, but was busy in court corridors and active as soon as he was availed with copy of ruling for further steps. It appears that even the letter requesting for a copy of. 4 ruling dated 27/3/2024 was received in this court on 28/3/2024, one day later. In the circumstances, I am convinced that the delay was not inordinate and was caused by a technical ground upon which the applicant should not be punished twice since he acted promptly upon the incompetent appeal being struck out. In that regard, I am persuaded to grant the application for extension of time to the applicant. The application is granted as prayed. Costs shall follow the events. The applicant to file the application within 14 days from the date of this ruling. 5