kennedy bakebula vs edwin kajumulo 2021 tzhc 9346 7 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA DISTRICT REGISTRY AT BUKOBA MISC. CIVIL APPLICATION NO. 14 OF 2021 (Arising from Civil Application No. 15 of2020 and Probate Appeal No. 09 of 2017 at the High court of Tanzania at Bukoba and Probate appeal No. 15 of 2015 at the District Court of Muieba. Originating from the Probate Cause No. 09 of 2014 at Nshamba Primary Court). KENNEDY BAKEBULA (Administrator of the estate ofthe late Kajumulo Buliba) ■■■■■■APPLICANT VERSUS EDWIN KAJUMULO.................................. RESPONDENT RULING 29 /09/2021& 07/12/2021 NGIGWANA, J. This is an application for extension of time within which to file an application for certification on the point of law to the Court of Appeal of Tanzania (CAT) out of time. The application is brought by way of chamber summons made under the provisions of section 5(2)(c) and Section 11(1) of the Appellate Jurisdiction Act Cap. 141 R: E 2019. The application is supported by an affidavit deponed by the Applicant Kenedy Bakebula. The applicant seeks the extension of time to file certificate on point of law to the Court of appeal of Tanzania against the judgment and decree of this court (Kairo, J as she then was) in Probate Appeal No. 9 of 2017 delivered on 27/03/2020. Briefly, the relevant facts leading to this application are as follows; i In 2014, the applicant filed Probate Cause No. 09 of 2014 at Nshamba Primary Court -Muleba District whereas the judgment was entered in his favor. The respondent was aggrieved, hence successfully lodged an appeal to the District Court of Muleba at Muleba, Probate Appeal No 15 of 2014. Aggrieved by the Decision of the District Court, the Applicant lodged an appeal to this court, Probate Appeal No. 9 of 2017, but the same was dismissed on 27/03/2020 for want of merit. Aggrieved, the applicant lodged a notice of appeal to the Court of appeal and Misc. Civil Application No. 15 of 2020 to this court seeking a certification on point of law. However, on 09/04/2021, the application was struck out with costs for being incompetent, and on 12/04/2021, the applicant filed the present application. When the matter was called on for hearing, the applicant had the legal services of Mr. Eliphas Bengesi, learned advocate while the respondent had the legal services of Mr. Frank Karoli. In support of the application Mr.Benges adopted the affidavit deponed by the applicant and argued that the applicant was aggrieved by the decision of this court in Probate appeal No. 9 of 2017 handed down on 27/03/2020, and as a result, he lodged a notice to the Court of appeal within time followed by Misc. Application No. 15 of 2020 to this court seeking a certification on point of law but the application was struck out on 09/04/2021 for being incompetent. That on 12/04/2021, the application at hand was promptly filed. 2 The respondent generally opposed the application to the effect that there are no points to be certified by this court and what the applicant seeks to certify are mere points of facts. On the other hand, Mr. Frank Karoli learned counsel for the respondent submitted that, it is trite law that in order to grant extension of time the applicant must demonstrate good and sufficient reasons but that negligent has never been a good ground for extension time. He ended his submission urging the court to strike out the present application with costs on the ground that the applicant had been negligent when filed incompetent application which was struck out by the court, and that cannot be the base of granting the present application. In brief rejoinder, Mr. Bengesi stated that the applicant was not at all negligent, and this application was promptly filed. Having heard submissions of both sides, the duty of this court is to determine whether the applicant has demonstrated good and sufficient cause warranting grant of the application. Section 11(1) of Appellate Jurisdiction Act Cap. 141 R: E 2019 states; "Subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court concerned, for making an application for leave to appeal or for a certificate that the 3 case is a fit case for appeal, notwithstanding the time for giving the notice or making the application has expired." Section 5(2)(c) of the Appellate Jurisdiction Act Cap. 141 R: E 2019 provides- "No appeal shall He against any decision or order of the High Court in any proceeding under Head (c) of Part III of the Magistrates'courts Act unless the High Court certifies that a point of law is involved in the decision or order". There is no doubt that section 11 cited here in above gives power to this court to extend time within which to file application for certification on the point of law to the Court of Appeal of Tanzania (CAT) out of time. However, the grant or refusal of the application is within the spectrum of discretionary powers of the High Court. The Court of Appeal in the case of Benedict Mumelo versus Bank of Tanzania, Civil Appeal No.12 of 2012 held that; "It is trite law that an application for extension of time is entirely in the discretion of the court to grant or refuse it, and that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause" In British Broadcasting Corporation versus Eric Sikujua Ng'ymaro, Civil Application No. 133 of 2004 CAT (Unreported) the Court of appeal had this to say; 4 "Needless to say, leave to appeal is not automatic. It is within the discretion of the court to grant or refuse leave. The discretion must, howeverjudiciously exercised and on the materials before the court...... " It is trite that in application proceedings like the present one, the affidavits constitute not only the pleadings but also the evidence. It is equally straight that the applicant must make out his case in his founding affidavit and that he must stand or fall by the allegations contained therein. It follows therefore that the applicant must set out sufficient facts in his founding affidavit which will entitle him to the relief sought. In this application, the court is satisfied that facts set out by the applicant in the founding affidavit warrant the grant of the application on the ground of technical delay. In nutshell, the facts are to the effect that, the applicant was aggrieved by the decision of this court in Probate appeal No. 9 of 2017 handed down on 27/03/2020, and as a result, he filed Misc. Application No. 15 of 2020 to this court seeking a certification on point of law, but the application was struck out on Friday, 9th day of April 2021 for being incompetent, and on Monday, 12th day of April 2021, he filed the present application. It is trite law that when the doctrine of technical delay is applicable, such delay is excusable and constitutes sufficient reason for granting the prayed extension of time. It follows therefore that, where any party timely files an appeal or application in court, but the court strikes it out for incompetence, then there will be sufficient ground for 5 granting extension of time to file a competent matter for the same orders or remedies that had been sought in the struck-out matter. See the case of Fortunate Masha versus William Shija and Another [1997] TLR. 154, Ustaadh Hassan Suleman Idrissa versus Shukuru Said Linjepe and 9 others, Civil Application No.661 of 2018 HC at DSM, and Uswege Webb Luhanga and another versus Musa Mohamed Mnasi and another, Misc. Land Application No.41 of 2020 HC at Mbeya. In Misc. Civil Application No. 15 of 2020 which was struck out on 09/04/2021, the prayer advanced by the appellant was coached as follows; "That the Honorable court be pleased to grant a certificate on point of law at the High Court of Tanzania so as to be able to appeal to the Court ofAppeal of Tanzania" Taking into account that the applicant filed the present application promptly, without even delay of a single day from the date which the first application was struck out, it cannot be said by any means or standard that applicant was negligent as there was no delay in filing the present application. In this application, the negligence referred by the learned counsel for the respondent is that of filing an incompetent application. However, filing of incompetent application having been duly penalized by striking out, the same cannot be used yet again to determine the present application on the point of negligence. Accordingly, I find that sufficient cause for extending time has been duly demonstrated by the applicant. 6 The above said, I grant the application. I order the applicant to file the intended application within 14 days from the delivery this ruling. I enter no order as to costs. Dated at Bukoba this 7th day of December, 2021. Ruling delivered this 7th day of December, 2021 in the presence of both parties in person, and in the presence of E. M. Kamaleki, Judges Law Assistant and Gosbert Rugaika, B/C. 7