land appeal 4880
- Citation
- land appeal 4880
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TANZLII
- Decision
- 1 January 2024
- Posture
- Land Appeal / Ruling on Preliminary Objection
- Language
- English
More details
- Court
- TANZLII
- Decision
- 1 January 2024
- Posture
- Land Appeal / Ruling on Preliminary Objection
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal was filed within the permissible period after excluding the time spent waiting for certified copies of the ruling and drawn order, and the requirement for a written request as stated in Nicodemus Lusambo is inapplicable to the present circumstances.
Court disposition
Preliminary objection overruled; appeal deemed filed within time.
Orders
- Preliminary objection dismissed.
02
Material facts
Parties
Kristabela Matei Makwinya
Appellant Counsel: Ms. Agnes DominickJenny Joseph Mwenura
Respondent Counsel: Mr. Habibu Kassim Habibu03
Procedural history
Posture
Land Appeal / Ruling on Preliminary Objection
04
Questions and positions
Legal issues
- 01
Whether the appeal was filed within the prescribed limitation period under section 41(2) of the Land Dispute Courts Act, Cap 216
- 02
Whether time spent obtaining certified copies of the ruling and order should be excluded from the computation of the limitation period
Party arguments
- Applicant
- The appeal was filed within time as the period spent waiting for certified copies of the ruling and order should be excluded from the limitation period.
- Respondent
- The appeal was filed out of time as it was lodged beyond forty-five days from the date of the ruling, and exclusion of time requires a written request for documents.
05
Court’s reasoning
Legal principles
- 01
Section 41(2) of the Land Dispute Courts Act, Cap 216
Time spent waiting for necessary documents for appeal may be excluded from the limitation period if properly accounted for.
- 02
Nicodemus Lusambo (Administrator of the Estate of the Late Julius Lusambo) vs Gerada Zakaria (Administrator of the Estate of the Late Zakaria Lusambo), Civil Appeal No. 486 of 2022, CAT
Requirement for a written request for supply of documents to exclude time from limitation period.
06
Ratio, limits and disposition
Ratio decidendi
The appeal was filed within the permissible period after excluding the time spent waiting for certified copies of the ruling and drawn order, and the requirement for a written request as stated in Nicodemus Lusambo is inapplicable to the present circumstances.
Obiter and limits
- The dictum in Nicodemus Lusambo applies only where the date of certification and delivery of judgment are the same, which is not the case here.
Court disposition
Preliminary objection overruled; appeal deemed filed within time.
- Preliminary objection dismissed.
Source and reliance status
TANZLII · 1 January 2024
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TANZLII
Judgment· 1 January 2024
v IN THE HIGH COURT OF TANZANIA (LAND DIVISION) * AT PAR ES SALAAM ; ' LAND APPEAL NO. 4880 OF 2024 . ' . ■ . /<•;'(Originating from Application No. 104 of 2023, Ubungo District Land and Housing Tribunal) • V ?/KRISTABELA MATEI MAKWINYA.......................................................... APPELLANT
VERSUS JENNY JOSEPH MWENURA................................................................ RESPONDENT _ RULING ■’TV■ ' ' ' ' ■, 17th-to'r?April, 2024 . ... . . vv; •;■■•.■ 'E.B. LUVANDA, J V The Respondent named above raised a preliminary objection that the appeal is . ■ filed beyond the period of forty-five days as prescribed under section 41(2) of. )'.■'■ the Land District (sic, Dispute) Courts Act, Cap 216 of 2019. Mr. Habibu Kassim Habibu learned Counsel for Respondent submitted that the ruling was delivered on 14/11/2023, arguing computing time of forty-five days, end on 28/12/2023. He submitted that this appeal was filed on 7/03/2024, well beyond the period of forty-five days.. He submitted that the certified copy of a . ruling was issued on 2/02/2024, arguing for the time to be excluded in ; . computing time for lodging an appeal, there must be a written request for the supply of documents necessary for an appeal purpose, citing Nicodemus .1 Lusambo (Administrator of the Estate of the Late Julius Lusambo) vs . Gerada Zakaria (Administrator of the Estate of the Late Zakaria Lusambo), Civil Appeal No. 486 of 2022, CAT. In reply, Ms. Agnes Dominick learned Counsel for Appellant distinguished ■'-Nicodemus Lusambo (supra), on explanation that therein it was not known as to when the Respondent in that matter was supplied with the judgment and . decree, argued the same were
dated and certified on the same date in which the judgment was delivered. On my part, I go along the argument of the learned Counsel for Appellant that the obiter of the apex Court in Nicodemus Lusambo (supra) is inapplicable in the circumstances of this matter. This is for obvious reason that herein, as per the submission of the learned Counsel for Respondent, the impugned ruling was . delivered on 14/11/2023 and certified on 2/02/2024 along drawn order which : was extracted on that later date. This appeal was filed on 1/03/2024, which is . within the range of a period of automatic exclusion of time when spent waiting for crucial documentations for purpose of appeal. In Nicodemus Lusambo. (supra), the apex Court imported the dictum and call for a written request for supply of documentations for appeal purpose for reasons stated by the learned : Counsel for Appellant that it was because the judgment and decree were dated. portraying to have been certified on the same date on which it was delivered. 3
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