joseph mshana administrator of the estate of the late naginder sing mathur vs evelyne mbuna 2021 tzhclandd 6782 11 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION N0.196 OF 2021 (Arising from the Land Case No. 427of2016) JOSEPH MSHANA(As an Administrator of the Estate of the late Naginder Singh Matharu) APPLICANT VERSUS EVELYNE MBUNA RESPONDENT RULING Date ofLast Order:29.09.2021 Date ofRuling: 11.11.2021 OPIYO. J. This application was brought under section 14(1)of the Law of Limitations Act, cap 89 R.E 2019. The applicant is seeking for an order of extension of time in order for him to file an application to set aside an abetment order, dated 31/8/2020 in Land case no. 427 of 2016. The application was accompanied by the affidavit of the applicant himself, Joseph Mshana. The same was heard by way of written submissions. Advocate Saiha Salehe Miiiima appeared for the applicant while the respondent was represented by Advocate Gasper Nyika. In her submissions,the applicant counsel maintained that the delay to file the applicant's intended application was not caused by negligence or laxity on his part, rather was due to the long court process that was involved in obtaining the letters of Administration. That, he applied for letters of Administration on the 9^"^ of October, 2020 and was given the said same on the 25^"^ February 2021. In his submissions, the counsei for the appiicant cited the case of Akwiline Flavian Marandu versus CRDB Bank Pic and Another where the Honourable Judge quoted the case of NBC Limited & Another versus Vitus Swaio, Civil Application No. 139 of 2009 where it was observed that:- However, in an application for enlargement oftime, the practice in this court and court of Appeal has shown that; the court may consider the following factors:length ofdelay, the reason for delay, the degree of prejudice and whether or not the applicant was diligent" Other cases cited by the applicant's counsei include the case of Lyamuya Construction Company Limited versus Registered Trustees of Young Women Christian Association of Tanzania, Civii Application No.2 of 2020. In reply. Advocate Gasper Nyika for the respondent relied on the case of Lyamuya Construction Company Limited, supra and maintained that the appiicant in this application has failed to give a sufficient cause for his delay to file his intended application. That, the reason given by the applicant's Advocate that the delay was caused by long court processes in obtaining letters of Administration for the estate of the late Naginder Singh Mathuru is unfounded. According to the counsei for the respondent, this allegation is not backed by any evidence such as when the said matter was instituted in court. He also insisted that as per Lyamuya case, supra, the appiicant did not account for each day of delay. That, according to paragraph 4 of the applicant's Affidavit, he stated that he obtained the ietters of Administration on the 25^"^ of February, 2021, however the instant case was filed on the 30^"^ of April 2021 which is over two months from the date when the said letters were obtained. The delay of two more months has not been accounted for. Mr. Nyika concluded his submissions by insisting that, it is obvious that the applicant's delay was caused by his acts of negligence and laxity as the facts show that the applicant if at all was serious to pursue his intended cause would have filed the application to set aside the abetment order immediately after obtaining the letters of Administration on 25^"^ of February 2021. I have considered the arguments of the applicant and the respondent through their learned Advocates. I also went through the affidavit in support of the application as well as the counter affidavit. The issue for determination is whether the applicant has shown sufficient cause for delay warranting granting the application. It is agreed that, in applications of this nature that, the court is only interested in two major things namely;(1) the applicant has provided a sufficient reason that led to his delay to pursue his intended cause and (2) he or she has accounted well for all the days he delayed to take the needed action, see Exim Bank(T)Limited versus Jacqline A. Kweka, Civil Application No. 348/18 of 2020, Court of Appeal of Tanzania,(unreported). In this case, the applicant has clearly stated that, his delay to present his intended matter was caused by the delay to obtain the ietters of Administration from the court, as stated at paragraphs 3 and 4 of the applicant's affidavit. That being the case, he deserves ieniency from this court as the delay was not caused by negligence on his part as stated in the case of Felix Jumbo Kissima versus Tanzania Telecommunication Co. Ltd and Another(1997)TLR 57 that, "/f should be observed that "sufficient cause'' should not be interpreted narrowly but should be given a wide interpretation to encompass aii reasons or causes which are outside the applicant's power to control or influence resulting in deiay in taking any necessary step!' I may agree with the counsei for the applicant that fact amounts to a good cause, sufficient to aliow the application at hand. However,there are two months that seems not weii accounted for by the applicant after obtaining the letters of administration which couid bring hesitation in granting the application on the ground of not weli accounting for each day of delay as required under the iaw. That is, from the 25^"^ of February to when he obtained those letters to April when this Application was iodged. However, I am aiive to the fact that an application for extension of time is entireiy in the discretion of the court to grant or refuse it, the discretion that must be exercise judicialiy having supporting stuff to do so. Looking on the nature of the circumstances at hand in which the land case was abated for delay in impieading the iegal representative of the then plaintiff, it is thought order XXII rule 3(2) of the Civil Procedure Code Cap 33 RE 2019. That was done on 31/8/2020, that was about six months before the ietters of administration was gotten in February 2021. This kept the rights of the deceased plaintiff at stake. As the current applicant is not suing in personal capacity rather in representative capacity. sometime may elapse putting together number of issues relating to the estate administered including rationalization of a need to proceed with the inherited cases like the one that abated. Therefore, preparation for filing this kind of application to protect interest of a deceased person may take some days. The days that are alleged to have not been accounted for are about two months. In my considered view, the two months delay for this kind of situation is not inordinate delay worth punishing the deceased for. I therefore find it necessary to use my discretionary powers for the interest of justice giving due consideration on the nature of the case to allow this application so that the applicant can be afforded the opportunity to pursue his intended cause on behalf of the late Naginder Singh Mathuru. Application to set aside the abatement order be made within 14 days from the date of this order. No order as to costs. 6 ^5 )-4 M.P. OPIYO, H JUDGE 11/11/2021