melchiades henry kalenzi v asha abdallah sungwe 2023 tzhclandd 16744 31 july 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 353 OF 2023

MELCHIADES HENRY KALENZI APPLICANT

VERSUS

ASHA ABDALLAH SUNGWE RESPONDENT

RULING Date ofLast Order: 11.07.2023 Date ofRuling: 31.07.2023 T. N, MWENEGOHA,J. Before me is an Application among others for leave to appeal to the Court of Appeal of Tanzania and a certificate on point of law, by the applicant here in above, Melchiades Henry Kalenzi. The respondent's counsel raised a preliminary objection on point of law that, the application is time barred. Mr. Malick Khatib Hamza, counsel for the respondent, maintained that, under Rule 45(a)of the Tanzania, Court of Appeal Rules of 2009, the time set for seeking leave to appeal or a certificate on point of law is 30 days, from the date when the impugned decision was delivered. The applicant intendents to challenge the decision of Hon. Makani, J. dated 17^^ February 2023. That is to say, the Application at hand ought to have been filed on the 20th March 2023. The instant Application was brought on the 14^^ June, 2023, about 86 days from the date of delivery of the impugned decision by Hon. Makan, J. This is against the established principle. See the case of Obetho Werema Joseph @ Obeto Joseph Werema versus CATA Mining Limited, Land Case No. 20/2020, High Court of Tanzania at Musoma,(unreported). Further, the respondent's counsel contended that, the applicant once applied for leave to appeal, vide Misc. Land Application No. 130 of 2023. The said Application was struck out, for being incompetent, with leave

to refile. However,the said leave is not endless. The same decision is subject to the law of limitation. The ruling of Hon. Mgeyekwa, J. was delivered on the 28^ April 2023, that if we count 30 days, this Application was to be filed on the 29^ May 2023. That, in both ways, this Application is time barred. In reply, the counsel for the applicant, maintained that the submissions by the respondent's counsel are unfounded. There is nowhere the applicant has mentioned the decision of Hon. V. L. Makani. The impugned decision was delivered by Hon Mgeyekwa J on the 28^ April 2023. The case was struck out for having a defective affidavit, but there was a leave to refile a fresh Application. That leave means the applicant is not tied up with 30 days as given under Rule 45(a)of the Court of Appeal Rules of 2019. Rather, the same is regulated for by the Law of Limitations, Cap 33 R. E. 2019, Item 21 of Part III, where 60 days have been given for Applications not covered under any law. Having gone through the submissions of both parties, for and against the objection, the issue for determination is whether, the objection by the respondent's counsel has merits. The respondent's counsel has relied his arguments under Rule 45(a) of the Court of Appeal Rules. The applicant's counsel on the other hand had insisted that, the said provision does not apply, that there was a leave to refile the case afresh from Hon. Mgeyekwa, J. vide Misc. Land Application No. 130 of 2023. Hence,the applicable provision is Item 21 of Part III of the Schedule of the Law of Limitations Act, Cap 89 R. E.

2019. I disagree with the applicant's counsel. The fact that there was a leave to refile the Application does not change the requirement of Rule 45(a)of the Court of Appeal Rules, of 2009. Because the nature of the Application is the same (Application for leave); and the law is already in place, giving a limitation of the time to apply for leave. This is Rule 45(a) of the Court of Appeal Rules, of 2009. Hence the arguments by the applicant's counsel are unfounded. For quick reference, I will reproduce Rule 45 (a) of the Court of Appeal Rules as follows; - 45. "In civil matters: - (a)notwithstanding the provisions ofruie 46(1), where an appeal iies with the leave of the High Court, application for leave may be made informaiiy, when the decision against which it is desired to appeal is given, or by chamber summons according to the practice of the High Court, within thirty days of the decision''. Looking at the Application at hand, if we count from the date the decision of Hon. Mgeyekwa, 2. was delivered, on the 28^ April 2023, to the date of filing the Application at hand, on the 14^^ June, 2023, it is more than 30 days. This Application therefore, was brought about 46 days from the date of delivery of the decision which gave the leave to refile the same. Hence it Is time barred as rightly argued by the respondent's counsel, see Obetho Werema Joseph @ Obeto Joseph Werema versus CATA Mining Limited, supra. I find the objection to have merits, and accordingly dismiss the Application with costs. It is so ordered. T. N^^MWENEGOHA Op JUDGE c V 31/07/2023 h I z % ★