jordan sankeya kamomonga others vs elizabeth sonkey kamomonga as administratix of the estates of sonkey mwasongwe kamomonga 2023 tzhc 23756 12 december 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY PROBATE APPEAL NO. 7 OF 2023 (Originating from Probate Revision No. 13 of2022 on the district court of Kyeia in original Probate and Administration Cause No. 9 of2022 of the primary court of Kyeia district at Ikoio) JORDAN SANKEYA KAMOMONGA...................................... 1st APPELLANT KILEO SANKAY KAMOMONGA............................................ 2nd APPELLANT VERSUS ELIZABETH SONKEY KAMOMONGA (as administratix of the estates of SONKEY MWASONGWE KAMOMONGA)........... RESPONDENT RULING Date of hearing: 21/9/2023 Date of ruling: 12/12/2023 NONGWA, J.: This ruling is the result of preliminary objection which has been raised by the respondents to the effect that; 1. That this appeal is hopeless time barred and it has filed on 29h march 2023 which is more than 30 days since pronouncement of the ruling of the district court 21st February 2023 without leave of i this honourable court contrary to section 25(1)(a) of the Magistrates Court Act, Cap 11 R: E 2019 (the MCA) 2. This appeal is incurably defective for being wrongly brought by way of memorandum of appeal contrary to section 25(3) of the Magistrates Court Act, ca 11 R: E 2019 On the hearing day of objection, the appellants appeared in person whereas the respondents were represented by Mr. Luka Ngogo, learned advocate. By consensus of party's disposal of objection was in form of written submissions. Parties complied with scheduling order drawn by the court. The respondent drafted written submissions by herself. The respondent submitted that the judgment of the district court was delivered on 21/2/2022 and the appeal filed to this court on 29/3/2022 after 37 days. It was argued that that under section 25(3) of the MCA the appeal originating from primary court to this court has to be filed within thirty days, that the present appeal was filed out of time after 37 days. The respondents cited the case of John Cornel vs Grevo (T) Ltd, Civil Case No. 79 of 2006 to support the argument. The respondents stated that the remedy to an appeal filed out of time is to dismiss it as per section 3(1) of the Law of Limitation Act. To support the point, they cited the case of Ali Shabani & 48 Others vs 2 Tanzania National Agency (TANROAD), Civil Appeal No. 261 of 2020 (Unreported). Submitting in second objection, the respondents stated that the appeal has been preferred by way of memorandum of appeal instead of petition of appeal as required by section 25(3) of the MCA. They submitted that the anomaly was due to gross negligence and cannot be condoned. Thus prayed the appeal to be dismissed. When it was time of the appellant to reply, he agreed with the respondents that an appeal to this court has to be lodged within thirty days. On the first objection he submitted that the computation of time was erroneously computed by the respondents because they did not exclude weekends and public holidays as required by section 60(2) of the Interpretation of Laws Act (the ILA). To support the point, the cited the case of Barclays Bank of Tanzania vs Jacob Muro, Labour Revision No 06 of 2015 and Nakomalwa Matepeli Shila vs Mwanahamisi Ally Nongwa, Civil Application No. 327/17 of 2021 (both unreported). From the cited laws, the appellant submitted that from when the decision was rendered in February there was two weekend days and in March eight weekend days making the total of ten days. He said, if ten 3 days are excluded then the appeal was filed after twenty-seven days had elapsed and therefore within time. In respect of the second limb of objection the appellant submitted that the anomaly was not fatal and the respondents have not been prejudiced, he cited the case of Fatma Aman Karume vs the Attorney General, Civil Appeal No. 2 of 2020 (Unreported) to support the argument. Rejoining, the respondents submitted that the decision of the high court in Barclays Bank (T) Ltd was overturned in appeal by the court of appeal in Civil Appeal No. 357 of 2019 between Barclays Bank (T) Ltd vs Jacob Muro in which the court interpretation section 60(2) of the ILA as not excluding all public holidays and weekends falling in the month. In respect of the case of Nakomolwa Matepeli Shila (supra) the respondent replied that it did not discuss the issue of excluding all weekends in the month in computation of period of limitation. On the second objection it was submitted that the appellant had conceded to the objection and the case of Fatma Aman Karume (supra) was not binding on me because it is the decision of this case. They added that the word used in section 25(3) of the MCA is shall making it mandatory. 4 Dispassionately I have considered the rival submissions, the issue for my determination is whether the objections have merits. Parties are in agreement and rightly so that under section 25(1) of the MCA appeal originating from primary court to this court has to be filed within thirty days. Furthermore, that the impugned decision was delivered on 21/2/2023 and the appeal filed on 29/3/2023 after lapse of thirty-seven days. The point of departure is manner of computation of thirty days, the appellant has submitted that weekends and public holidays are excluded in the computation whereas the respondent has the different view, he has submitted that weekends and holidays are included save when the last day falls on weekend or holiday. In support the argument the appellant relied on section 60(2) of the ILA, Nakomolwa Matepeli Shila (supra) and the case of Barclays Bank Ltd (supra). The case of Nakomolwa Matepeli Shila as rightly submitted by the respondents the court did not discuss the impute of section 60(2) of ILA and that all weekends in the month has to be excluded. Therefore, distinguished with the current appeal. The case of Barclays Bank Ltd (supra) relied by the appellant is no longer good law because the decision was overturned on appeal through Civil Appeal No. 357 of 2019 between Barclays Bank (T) Ltd 5 vs Jacob Muro. In that appeal the court of appeal considered section 60(2) of the ILA and stated that First, we are aware that in reckoning days prescribed by a statutory provision a court is enjoined to apply the provisions of section 60 of the Interpretation of Laws Act, Cap. 1 R.E. 2002 (now R.E. 2019) ("the ILA”) ... Secondly, while both section 60 (2) of the ILA and Rule 4 (2) of the Rules provide for exclusion of non-working days (Saturday, Sunday and public holiday) if the last day of any prescribed period of limitation falls on any such day, none of the said provisions has the effect of excluding all weekends and public holidays falling within a particular period as suggested in the above holding. Thus, it means the exclusion by Nyerere, J. of five days falling on weekends throughout the period of thirty-three days was manifestly erroneous.' Reverting to the objection under consideration it follows that period of limitation is reckoned by including all days of weekend and public holidays except when the last day fall on such day. Taking on 21/2/2023 to 29/3/2023 when the appeal was filed, thirty days within which the appeal was to be lodged expired on 22/3/2023. On 29/3/2023 when the appeal was filed, the appellant was late by seven days. It falls that this appeal was filed beyond thirty days required by section 25(l)(a) of the MCA without leave of the court. The appeal is therefore time barred. 6 After sustaining the first objection, I find it enough to dispose the whole appeal and no need to discuss the second objection because it will be for academic purpose with no purpose to save. In the event, I sustain the first objection and hold that the appeal is time barred. I hereby proceed to struck it out with no order to costs because parties are siblings. V.M. NONGWA JUDGE 12/12/2023 Dated and Delivered at Mbeya this 12th day of December 2023. V.M. NONGWA JUDGE 7