husna rashid issa adminstratlx of the late zaina mkombe zenna mkombe versus fatuma ally mkombe 2023 tzhclandd 16847 28 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION N0.107 OF 2023 {Arising from Land Appeai No. 18 of2021} HUSNA RASHID ISSA (Adminstratlx of the Late ZAINA MKOMBE,ZENNA MKOMBE) APPLICANT VERSUS FATUMA ALLY MKOMBE RESPONDENT RULING Date ofLast Order: 28.07.2023 Date ofRuling: 28.08.2023 T. N. MWENEGOHA,3. The applicant Is seeking for an order of extension of time so that she can lodge an Application for restoration of Land Appeal No. 18 of 2021 out of time. It follows a decision of Hon. Mwenegoha, J. in the former case, which dismissed it for want of prosecution. The Application was brought under Section 14(1) of the Law of Limitations Act, Cap 89, R. E. 2019. It was accompanied by the affidavit of the applicant herself, Husna Rashid Issa. The same was heard by way of written submissions Advocate Mussa Kiobya, for the applicant, has argued in his submissions that, the reasons for delay to apply for a restoration of the appeal were caused by a delay in obtaining the letters'of Administration for the estate of the deceased, Zaina Mkombe. That, she died on the 13^ June, 2022. The impugned decision was given on the 21^ September 2022. Up to that time, the deceased family was yet to complete the process of obtaining a legal representative for the deceased's estate. The process took a long time due to variations of names of the deceased. That, she was referred as Zaina Mkombe and in other places Zenna Mkombe. The applicant had to work on these variations first, before anything else. That, the time used in completing the deceased's estate administration processes constitute an excusable delay, as they were beyond their control. That, the applicant became officially a legal representative of the late Zenna All Mkombe on the 28^ November, 2022. At that time, the 30 days' time to apply for a restoration of the Land Appeal No. 18 of 2021, had already lapsed. He insisted that,for those reasons, this Court should see the same as sufficient to extend the time in favour of the applicant, as stated in Oswald Masatu Mwinzarubi versus Tanzania Fish Processors LTD, Court of Appeal of Tanzania, Civil Application No. 13 of 2010 (Mwanza Registry, (unreported). Further, Mr. Mussa Insisted that, there are illegalities in the Impugned decision of Hon. Mwenegoha, J. vide Land Appeal No. 18 of 2021. That, she dismissed a case for reasons that the appellant did not file her written submissions, while the same were filed as scheduled. He referred the Court to the case of Principal Secretary, Ministry of Defence and National Services versus Devram Valambhia (1992)TLR 185. In reply, the respondent who appeared in person argued that, the Application at hand has no merits as the applicant failed to give sufficient reasons for her Application to be allowed. The delay to restore her appeal was caused by her negligence and not by reasons beyond her control. The respondent referred this court to the case of Ratman versus Cumara Samy(1965)1WLR10 at page 12 I have considered the submissions of the Applicant's counsel. Also went through the affidavit In support of this Application. The issue for determination is whether the Application has merits. My duty at this stage Is to satisfy myself, if the applicant has adduced sufficient reasons for her delay In taking the intended course as stated In her chamber summons. In his arguments, the applicant's counsel has stated the reason caused the delay in applying for a restoration order was the fact that, the applicant was in the process of obtaining the letters of administration for the estate of the late Zenna/Zaina Mkombe. On record, I have the documents for Administration of the Estate of the Zenna Ali Mkombe, annexure ZP-1. Also, the documents for change of the deceased's name from Zenna All Mkombe to Zaina Mkombe, annexure ZP-6 and ZP-7. All these documents prove the arguments by the applicant's counsel that, there were complications Involved in obtaining the letters for the administration of the deceased's estate on part of the Applicant. Hence, she delayed In filling her intended application. Her delay was beyond her control and the same is excusable. The reasons advanced as causing the delay, are sufficient reasons enough to enlarge the time as prayed, see Oswald Masatu Mwinzarubi versus Tanzania Fish Processors Ltd, (supra). Therefore, I find this Application to have merits, even without considering the second reason of illegality. The findings above, are capable of disposing the whole Application as I have pointed out here in earlier. ?' In the event, the application Is allowed. The Applicant is given 14 days to present her intended application. No order as to costs. Ordered according. lOHA 11^/ JUDGE nr: i p- u r*- 28/08/2023 ^// ox %J. ★