herman alphayo kisila as administrator of the estates of the late ruth alphayo vs george jonas 2023 tzhc 16434 31 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA MISC. APPLICATION NO. 89 OF 2022 (Originating from Land Appeal No. 9 of 2021) BETWEEN HERMAN ALPHAYO KISILA (An Administrator of the estate of the late RUTH ALPHAYO).................................................... APPLICANT VERSUS GEORGE JONAS......................................................... RESPONDENT EX-PARTE RULING 28/03/2023 & 31/03/2023 MWASEBA, J. This application was filed by the applicant seeking for the following orders: i) That, this Honourable Court be pleased to grant the applicant extension of time to substitute the deceased's name with that of the administrator of estates. ii) That, this Honourable Court be pleased to substitute the deceased's name with that of the administrator of estates. iii) Any other relief that this Honourable Court shall deem fit and equitable to grant. Page 1 of 4 In this application, Mr Emmanuel Sood appeared for the applicant while the respondent was represented by Mr Kennedy Mapima. However, the matter proceeded exparte due to nonappearance of the respondent and his counsel although they were duly served and appeared in court once. The application was disposed of orally. In support of the application, Mr Sood learned counsel argued that the appellant in Land Appeal No. 9 of 2021, Ruth Alphayo died on 31/03/2021, therefore her name needs to be substituted with that of the administrator of her estate. He argued further that, he is aware that the name of the deceased need to be substituted within 90 days. He prayed for the application to be granted as the applicant met the requirement outlined in the case of Hamis Mohamed (As Administrator of estates of Risasi Ngawe) vs Mtumwa Mushi (as Administratrix of the Estates of the late Moshi Abdallah), Civil Application No. 407/17 of 2019 (CAT sitting at Dar es Salaam). Having gone through the submission of the applicant's counsel the main issue for determination is whether the application has merit. Item 16 of Part III of the First Schedule to the Law of Limitation Act, Cap 89 R.E 2019 provides for the period within which an application for joining a legal representative in a suit can be filed. It states as hereunder: ( Page 2 of 4 "Under the Civil Procedure Code to have a legal representative of a deceased party, whether in a suit or appeal, to be made a party............................ninety days," In this application, it is undisputed fact that the Appellant in Land Appeal No. 9 of 2021 died since March, 2021 and Mr Herman Alphayo Kisila was appointed as Administrator of her estates. Further to that, the record reveals that, the late Ruth Alphayo died soon after she lodged her appeal to this court in March, 2021, therefore, her legal representative could have not stepped in prior to his appointment as administrator of the deceased's estate. It is a legal requirement that once a party to the case dies and the right to sue survives, the legal representative of the deceased shall be made a party and proceed with the suit. This is well provided under Order XXII Rule 3 (1) of the CPC that: " Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit" (Emphasis added) < Page 3 of 4 Being guided by the above provision, and for the sake of justice I find that this application has merit and I proceed to grant it accordingly. The name of the deceased Ruth Alphayo (the appellant in Land Appeal No. 10 of 2021) be substituted with that of his Legal Administrator, Mr. Herman Alphayo Kisila), within 14 days from the day of this ruling. Ordered accordingly. DATED at ARUSHA this 31st day of March, 2023. Page 4 of 4