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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY) AT MOROGORO LAND APPEAL NO. 25155 OF 2024 (Arising from the judgement and orders of the District Land and Housing Tribunal of Morogoro In Land Application No. 207 of 2018 dated 27/08/2024) JOB GODSON METEIYAN APPELLANT VERSUS HAPPINESS SAMWEL TYEAH (AS THE ATTORNEY OF ANNA SAMWEL TYEAH) RESPONDENT RULING 07/11/2024 & 18/11/2024 KINYAKA, J.; Upon his dissatisfaction with the decision of the District Land and Housing Tribunal for Morogoro at Morogoro hereinafter the "trial Tribunal" dated 27^^ August 2024, the appellant instituted the present appeal on 8^^ October 2024 within the time prescribed under the law. When the matter was called on for mention on 22"^^ October 2024, the counsel for the respondent, Mr. Mkilya Daudi informed the Court that the appeal was brought against only one respondent and omitted to include all parties in Land Application No. 207 of 2018 that litigated before the Tribunal. The Court ordered the parties to address on the issue on 7^^ November 2024. On 7^^ November 2024, Mr. Emmanuel Kimaro and Mr. Mkilya Daudi, learned counsels appeared for the appellant and the respondent, respectively. In addressing the concern raised by Mr. Mkilya that the other three persons who were parties in Land Application No. 207 of 2018 before the Tribunal have not been made parties to the instant appeal, Mr. Kimaro conceded that the names of the parties in the present appeal does not match with the parties before the trial Tribunal. He admitted that Nickson Augustino Ngunga, Almas C. Mbugi and Atufena E. Mbiro were not joined in the present appeal. He contended to have been engaged after the appeal was filed. He prayed for the appeal to be struck out with leave to refile and be spared with costs. Relying on the decisions of the Court of Appeal in the cases of Isack Wilfred Kasanga v. Standard Chartered Bank Tanzania Limited, Civil Application No. 453/01 of 2019, and Salim Amour Diwani v. the Vice Chancellor of the Nelson Mandela African Institution of Science and Technology and Attorney General, Civil Application No. 116/01 of 2021, Mr. Mkilya submitted that failure to include all parties who were in the lower court proceedings renders the appeal incompetent and the remedy is to strike it out. He submitted that striking out is one thing but leave to refile the appeal should be subject to limitation of time. He did not press for costs as the counsel for the appellant had conceded to the incompetency of the appeal. I have examined the submission of parties in relation to the matter under consideration. Indeed, the memorandum of appeal together with the details filled and filed on the online system reveal that the appellant preferred the present appeal against one respondent who was the applicant in Land Application No. 207 of 2018 before the Tribunal. It Is on record that Nickson Augustino Ngunga, Almas C. Mbugi and Atufena E. Mbiro who were the 2"^, 3^^, and 4^^ respondents, respectively, at the Tribunal were not included in the present appeal. Both parties agreed on the incompetency of the present appeal for the appellant's failure to include all parties who were in the lower court proceedings. The parties also agreed that the appeal ought to be struck out. However, Mr. Kimaro and Mr. Mkilya are not at one with the prayer for leave to refile. While Mr. Kimaro argued that the Court has discretionary powers 3 to grant leave to refile the appeal upon striking out the same, Mr. Mkilya was of the view that once a matter is incompetent, it ought to be struck out but the refiling of the same is subject to time limitation. I agree with Mr. Mkilya on his observation. In my respective opinion, once a matter is struck out, refiling of the same is subject to time limitation for instituting an appeal. If the time for filing the appellant's appeal is yet to elapse, the appellant is at liberty to refile his appeal. However, if the time to appeal has elapsed, the order of the court in favour of the appellant to refile the same, will not be of assistance to the appellant. I subscribe to the holding of this Court in the case of Mwaitenda Ahobokile Michael v. Interchick Company Ltd, Miscellaneous Labour Application No. 364 of 2020 [2020] TZHCLD 3855 (19 November 2020). The court stated; "The court has come to the above finding after being ofthe view thaf the effect of faiiure to compiy with the requirements provided in the cited provision ofthe iaw is to render an appeai incompetent which its remedy is to appiy for withdrawai of the appeaias it was done by the appiicant or the appeai to be struck out by the court. It is the view of this court that, after the appeai being withdrawn orstruck outifthe time to refile the appeal has elapsed. If an appellant or an applicant wish to refile the appealis required to seek for extension A oftime to refile the appeal out oftime as the applicantIs seeking In the present application."[Emphasis added] I have noted that the judgement of the Tribunal was delivered on August 2024 and that the appeal was timely lodged on 8^^ October 2024. Apparently, section 41(2) of the Land Disputes Courts Act Cap. 216 R.E. 2019 provides for a period of 45 days to appeal against the decision of the Tribunal In the exercise of its original jurisdiction. It means that the time for filing the appeal elapsed on 11^^ October 2024. That said, even If this Court grants the appellant leave to refile, he will be required to apply and obtain an order for extension of time to refile his appeal. In view of the above, I hold that though this Court has powers to order a party to refile his or her pleading once an incompetent matter Is struck out, the same should be subject to the limitation of time to Institute the said pleading. Consequently, I strike out the present appeal for being incompetent. The appellant Is at liberty to refile his appeal after obtaining an order for extension of time. As the respondent has not pressed for costs, I order each party to bear Its own costs. It is so ordered. cb" DATED at MOROGORO this 18^^ day of November 2024. H A KINY KA JUDGE 18/11/2024