jenifer kajiru 2 others vs zawad elirehema machuve 2022 tzhclandd 611 30 june 2022

■>' IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 508 OF 2021 (Arising from the Land Appiication No. 171 of 2016 from Kibaha District and Housing Tribunal decision dated on 18^ October, 2018) 3ENIFA KA3IRU APPLICANT KUNGUPALA MOHAMED 2'^° APPLICANT ROBERT KAJIRU APPLICANT VERSUS ZAWADI ELIREHEMA MACHUVE RESPONDENT RULING Date ofLast Order: 20. 06.2022 Date ofRuling: 30.06.2022 T. N- MWENEGOHA,J- In this application, the applicants sought for a leave of this Court to present their appeal to this court out of time, against the judgment given in Land Application No. 174 of 2016, dated IS"^ October, 2018, by Kibaha District Land and Housing Tribunal. It was preferred under section 41 (2) of the Land Disputes Courts Act, Cap 216, R. E. 2019 and accompanied by the affidavit of Augustine Mathern Kusaiika, Advocate for the applicants. The respondent on the other hand raised a preliminary objection against the application to the effect that, the same is time barred. Tliis Court went on to hear the objection by way of written submissions. The respondent was represented by Advocate Imam Hassan Daffa, while the applicants enjoyed the legal services of Advocate Augustine Mathern Kusaiika. Mr. Daffa, arguing in favour of the objection, maintained that the Instant application contravenes Item No. 21 of Part III of the Schedule of the Limitations Act, Cap 89, R. E. 2019 as it is time barred. The same was supposed to be filed within 60 days. In reply, Mr. Kusalika was of the view that, the objection is misconceived as there is no specific time set within which a person can apply for extension of time. He cited the case of Tanzania Rent a Car Limited vs. Peter Kihumu, Civil Application No. 226/01 of 2017,Court of Appeal of Tanzania, at Dar es Salaam (unreported). In rejoinder, the respondent's counsel reiterated his submissions in chief and admitted that, there is no law requiring the applicant to file this application within a prescribed time, that's why he has referred the Court to the provisions of Item No. 21 of Part III of the Schedule of the Limitations Act, Cap 89, R. E. 2019. In determining the merit of this objection, I note that in his rejoinder the respondent's counsel has admitted to the fact that, we have no provisions in our jurisprudence, setting a specific time within which a person can file an application to enlarge time. That means his objection is a factual issue and not a point of law. To agree with what he is proposing, we need evidence and arguments for and against his position before the Court ascertain on the existence or non-existence of the issue at hand. That being the case, the rules governing preliminary objections will come to play and the same bar this Court from entertaining the objection at hand, see Mukisa Biscuit Co. Ltd vs. West End Distributors Ltd (1969) and also Lyamuya Construction Company Ltd versus Board of Registered Trustees of Young Women Christians Association of Tanzania, Civil Appeal No.2of 2010,Court of Appeal of Tanzania, (Unreported). Hence, I find this objection to be devoid of merits. The objection is overruled. The main application shall proceed to be heard on merits until its final determination. In the event, the whole application is dismissed with no order as to costs. It is so ordered. Tj^NfMWENEGOHA TA7V ^ JUDGE 4^ T 30/06/2022 O o X 2 o o <0 4 LP^