RULING JOSEPH MWAMBEGELE VS STAFORD MOSES

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB- REGISTRY AT MBEYA MISCELLANEOUS CIVIL APPLICATION NO. 15510 OF 2024 CASE REFERENCE NO. 202407011000015510 (Originating from Land Application No. 02 of 2017 in the District Land and Housing Tribunal for Rungwe) JOSEPH BROWN MWAMBEGELE (administrator of the estate of the late NICO BROWN MWAMBEGELE) ………….......……..……APPLICANT VERSUS STAFORD HERWICK MOSES (administrator of the estate of the late HELENA MWAMBEGELE) ...........................................RESPONDENT RULING Date of hearing: 28/8/2024 Date of ruling: 12/9/2024 NONGWA, J. The applicant, through chamber summons made under section 41(2) of the Land Disputes Courts Act [cap 216 R: E 2019] has moved the court for extension of time within which to file an appeal in this court against the judgment of the District Land and Housing Tribunal for 1 Rungwe in Application No. 02 of 2017. The application is supported by an affidavit from the applicant. In the affidavit of the applicant, it is deponed that the judgment of the tribunal was delivered on 22nd March 2024 and the appeal to this court was filed on 14th April 2024 as Land Appeal No. 8124 of 2024. That in the said appeal he exchanged names of parties, the applicant here as respondent and vice versa, subsequently the appeal was withdrawn hence this application. The respondent did not file counter affidavit. When the matter was called for hearing, the applicant was represented by Ms. Jenifer Biko learned counsel whereas Mr. Felix Kapinga, also learned counsel appeared for the respondent. At the outset, Mr. Kapinga indicated that the respondent was not contesting the application. Since there was no opposition, Ms. Biko requested to adopt the chamber summons along with the supporting affidavit and asked for the application to be granted. Notwithstanding the fact that the application is not opposed, the issue to be determined by the court is still whether or not the application is meritorious. However, before the substance of the application is dealt with, let it be restated that the power of the court to enlarge time is both 2 wide and discretionary. Section 41(2) of the Land Disputes Courts Act in which the application is made provides; ‘41(2) An appeal under subsection (1) may be lodged within forty-five days after the date of the decision or order: Provided that, the High Court may, for the good cause, extend the time for filing an appeal either before or after the expiration of such period of forty-five days.’ The overriding factors above is upon advancing good cause, there is no universal definition of what constitutes good cause, in exercising such powers, the Court is required to consider the prevailing circumstances of the particular case guided by a number of factors such as the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent and whether there is a point of law of sufficient importance such as illegality of the decision sought to be challenged. This also was discussed in Lyamuya Construction Co. Limited vs Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4 (3 October 2011; TanzLII). I have dispassionately considered reasons given for the delay and came to a considered view that the application is meritorious. The reason 3 advance by the applicant is that he was prosecuting Land Appeal No. 8125 of 2024 which was withdrawn after he noticed some errors. The position of the law is settled that where a party has been diligent in taking essential steps in the furtherance of his intended appeal but, on the way, he is caught up in the web of technicalities, sufficient cause is to be taken to have been shown for the delay. The error committed by the counsel in normal in the usual course of business for human beings can forget, can error, can make mistakes, for we are not angels. In Okech Boaz Othiambo & Another vs Salama Idi Kanyoroto, Civil Application No. 900/15 of 2021 [2024] TZCA 291 (2 May 2024; TanzLII) Mlacha J.A stated; ‘We are not angels. We are human beings and can make mistakes. People should not be punished for mistakes which they could not be foresee unless there is evidence that the mistakes were made deliberately with the view of getting some advantage out of it. I don't see such a situation here but a technical delay.’ From the disposition in the affidavit the initial appeal was filed well within time that shows diligence on party of the applicant and his advocate. Further after the withdrawal of Land Appeal No. 8125 of 2025 on 18th June 2024, it took only two days for the applicant to file this application that is on 20th June 2024 which show promptness in taking 4 action. Given the above good cause has been advance warranting to exercise my discretionary powers under section 41(2) of the Land Disputes Courts Act, Cap 216 and extend time within which the applicant may file his intended appeal. In the premises, I find merit in the application and grant it accordingly. The applicant is given 14 days from the date of this order within which to lodge the appeal. Costs to follow the outcome of the intended appeal. V.M. NONGWA JUDGE 12/9/2024 Dated and Delivered at Mbeya this 12th September 2024 in presence of Mr. Felix Kapinga for the Respondent. V.M. NONGWA JUDGE 5