latifa amon mahava and another versus kulwa yamsebo adminstrator of the estate of the late charles yamsebo 2022 tzhclandd 15725 17 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION N0.339 OF 2022 {Originating from Land Case NoA76 of2020) LATIFA AMON MAHAVA 1®^ APPLICANT PAUL GASPER MREMA (Adminstrator of the Estate of the late Gaspar Paul) APPLICANT VERSUS KULWA YAMSEBO (Adminstrator of the Estate of the late Charles Yamsebo) RESPONDENT EX-PARTE RULING Date ofLast Order: 05.09.2022 Date ofRuling: 17.10.2022 T. MWENEGOHA,3 The applicant is seeking for a leave to appeal to the Court of Appeal of Tanzania, against the whole Ruling and Drawn Order of this Court, given by Hon. V.L Makani J vide Misc. Land Application No.476 of 2020, dated 29^ November, 2021. The Application was made under sectipn 47(2)of the Land Disputes Courts Act, Cap 216 R-E 2019. It was also accompanied by the joint affidavit of the applicants. It was their argument that, by virtue of the law requirements, an appeal to the Court of Appeal is not automatic, it lies with leave of this Court to be granted to the applicants before appealing or lodging records of 1 appeal to the Court of Appeal. They argued further that they have sufficient grounds of which the applicants intend to ask the Court of Appeai of Tanzania to differ with the decision of this Court inciude the foiiowing; a) Whether it was proper for the High Court to deny the appiicants their constitutional right to appeai basing on technical issues rather than substance leaving the dispute between the parties unresolved. b) Whether it was proper for the High Court to dismiss the appiication for mistake and negligence occasioned by appiicants advocate. c) Whether the High Court did properly exercise its discretionary powers in interpreting the iaws to different situations in denying the applicants their right to appeal. The same was heard by way of written submissions, and exparte against the respondent, for his faiiure to fiie written submissions. Advocate Manase Wiison Goroba, represented the applicant. In his submissions, he was of the view that, the decision of Makani J., is tainted by iilegaiities that are in need of the attention of the Court of Appeal of Tanzania. He argued that they have overwhelming chances of success and that the right to appeai is a constitutional right. The applicants argued that they were aggrieved by this Court's decision and they wish to chalienge legaiity of proceedings of in Misc. Land Appiication No. 456/2022. They further argued that they are aggrieved due to negligence of an advocate and prayed for the Court to take that into consideration. They referred this Court to the case of Felix Tumbo Kisima vs TTCL (Civil Application No.l of 1997) [1997] TZCA where in similar situation the Court granted extension of time due to negligence of the advocate. Having gone through the submissions of applicant's counsel and the affidavit in support of the Application, the issue for determination is whether the Application has merits or not. As argued by the applicant's counsel, the applicants have the right to appeal to the Court of Appeal of Tanzania and has also advanced valid reasons as to why such appeal is needed. This Court is noting that the Application was not contested by the respondent hence no doubt has been raised to the sufficiency of the grounds advanced. As the Court is convinced that applicants have sufficient grounds to approach the Court of Appeal, it will not bar them from doing so. Eventually, the Application is granted. No order as to costs. o s , MWENEGOHA i- ★ JUDGE rf 17/10/2022