latifa amon mahava another vs kulwa yamsebo 2021 tzhclandd 6952 29 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CIVIL APPLICATION NO.476 OF 2020 (Arising from Ilala District Land and Housing Tribunal in Land Application No.244 of 2015) LATIFA AMON MAHAVA APPLICANT PAUL CASPAR MREMA (Administrator of the Estate of the late CASPAR PAUL MREMA) 2'^'^ APPLICANT VERSUS KULWA YAMSEBO (Adminlstratlx of the Estate of the late CHARLES YAMSEBO) RESPONDENT Date of Last Order; 02.10.2021 Date of Ruling 29.11.2021 RULING V.L. MAKANI. J The applicants herein have filed an application for extension of time within which to file an appeal out of time in respect of Land Application No.244 of 2015. The application is under section 41(2), of the Land Disputes Courts Act, CAP 216 RE 2019 and is supported by the affidavits of the applicants herein. With leave of the court the application proceeded by way of written submissions. Mr. Owokusima Baitani, Advocate drew and filed submissions on behalf of the applicant while Mr. Ishengoma, Advocate drew and filed submissions in reply on behalf of respondent. Submitting for the application Mr. Baitani said that the applicants herein were also applicants in Land application No.244 of 2015 at Ilala District Land and Housing Tribunal (the Tribunal). That judgment was delivered on 29/09/2019 and the applicants were dissatisfied with the decision. However, the 1^ applicant was seriously sick and therefore was not in a position to initiate an appeal on time. Counsel insisted that the main reason for delay is sickness. He relied on the case of Bertha Islael Behile vs. Zakaria Islael Kidava, Civil Application No.l2 Of 2016 (HC-Iringa) (unreported). Counsel further said that application for extension of time is within discretion of the court to grant or refuse the same and his reliance was on the case of Tanga Cement Company Ltd vs. Jumanne D. Masanga & Amos A. Mwaiwanda, Civil Application No. 06 of 2001 (CAT-Tanga) (unreported). As for the 2"^^ applicant he said that he lost his mother and so being the eldest he had a lot of work to do in respect of the family. On the other hand, Counsel said that there are serious irregularities in the impugned decision. That from the first page to the last page the opinion of assessors was not on record and was not read to the parties before the judgment as required by the law. He further relied on the case of Mwita Swagi vs. Mwita Gateba, Misc. Land Case No.36 Of 2019 (HC-Musoma)(unreported). Counsel prayed for the application to be granted. In reply, Mr. Ishengoma said that the documents were ready for collection on 24/04/2020 while the medical records for the applicant indicate that he attended hospital on 13/05/2020, 17/08/2020 and 03/09/2020. That there is no explanation for the dates between 24/04/2020 to 13/05/2020. He argued that the mother of the 2"^ applicant passed away back in December 2019 and that unless there is a death certificate the allegations are baseless. Counsel further said that delay of even of a single day must be accounted for otherwise there would be no point of having rules prescribing certain steps to be taken as stated in the case of Tanzania Rent A Car vs. Peter Kimuhu, Civil Application No.226/01 Of 2017(CAT-DSM)(unreported). Mr. Ishengoma pointed out that this application was trigged by the execution proceedings by the respondent and that the application herein intends to frustrate the execution proceedings. He insisted that litigation must come to an end, and further that allowing litigants to keep roaming in court amounts to denying the decree holders their rights to enjoy the fruits of the decree. He insisted that the applicants have failed to account for each and every single day of delay. That the applicants have also failed to prove that at the time of filing the appeal, the applicant was sick. Counsel prayed for the application to be dismissed with costs. The main issue for determination is whether this application has merit. As correctly stated hereinabove, an application for extension of time is entirely the discretion of the court. It may only be granted where it has been sufficiently established that the delay was with sufficient cause.(See Mumello vs. Bank of Tanzania Civil Appeal No. 12 of 2002(CAT-Dar es Salaam (unreported). The records are very clear that the impugned decision was delivered on 29/11/2019 and was certified and ready for collection on 24/04/2020. Medical chits on records reveal that the 1^^ applicant attended hospital on 03/05/2020, 05/05/2020, 09/08/2020, 17/08/2020 and 03/09/2020. The period between 24/04/2020 and 03/05/2020 when she did not attend hospital is not accounted for by the applicant. And the period between 03/09/2020 when the applicant last attended hospital and when this application was filed on 28/08/2020 is also not accounted for. The 2"^ applicant in paragraph 5 of his affidavit states that he was late to file the appeal because he lost his mother, but he did not state when his mother died and the medical report noted as Annexure RAM2 is not annexed to the affidavit as alleged. In any case, the medical report is not a Death Certificate so in essence there is no proof to substantiate the death of the 2"^ applicant's mother. In that respect, since the 2"^^ applicant present, he could have proceeded with the process of filing the appeal, but there is no explanation as to why he did not file the said appeal. There was an issue of irregularity in the impugned decision that the opinion of the assessors was not referred in the judgment of the Tribunal. However, going through the judgement, at page 9 the Chairman referred and then differed with the opinion of the assessors and she gave reasons thereof. If Counsel had time to go through the judgment comprehensively, then he would not have raised this as an issue for grant of extension of time. From the reasons stated above, it is my view that the applicants have failed to give sufficient reasons to warrant the court to exercise it discretionary powers to grant extension of time. In the result this application lacks merit, and it is hereby dismissed with costs. It is so ordered. OF o w 5^ V.L. MAKANt cy ST/- =3/ JUDGE 29/11/2021