geofrey shoo and another vs mohamed s kitumbi 2021 tzhclandd 749 25 october 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 550 OF 2021 (Arising from Land Appeal No. 224 of 2016) MR. GEOFREY SHOO............................................... 1st APPLICANT MRS. STELLA SHOO............................................... 2nd APPLICANT VERSUS MOHAMED SAID KITUMBI................................... 1st RESPONDENT THE EXECUTIVE DIRECTOR, KINONDONI MUNICIPAL COUNCIL......................................... 2nd RESPONDENT MOHAMED SAID KITUMBI The Guardian of MTUMWA MOHAMED KITUMBI........................ 3RD RESPONDENT RULING Last order date: 25.10.1021 Ruling date: 25.10.2021 A.Z. MGEYEKWA, J The application for consideration is the applicant's application for leave to appeal to the Court of Appeal of Tanzania against the ruling and order of this court dated 21st January, 2019. This application is brought under i section 47 (2) of the Land Dispute Court Act, Cap. 216 [R.E. 2019], section 5 (1) (c) of the Appellate Jurisdiction Act, Cap. 141 [R.E. 2019] and Rule 45 (a) of the Tanzania Court of Appeal Rules of 2009 as amended. The application is supported by an affidavit deponed by Mr. Mwang'enza Mapembe, learned counsel for the applicant. The 2nd respondent feverishly opposed the application. In a counter-affidavit sworn by Mr. Jeremiah Odinga, Legal Officer for the 2nd respondent. Other respondents did not file their counter-affidavits and stated that they do not object the applicant's application. The applicant was represented by Victoria Gregory, learned Advocate whereas Ms. Fausia, learned counsel appeared for the 1st and 3rd respondents and Mr. Mwambalaswa, learned counsel represented the 2nd respondent. When the matter came up for mention on 28th October, 2021, the respondents Advocates had conceded to the applicant's application. Therefore the learned counsel for the applicant ended up by praying for this court to grant the applicant's application As long as the respondents Advocates have concede the applicant's application. I proceed to examine the applicant's affidavit to find out 2 whether there are any triable grounds to attract the attention of the Court of Appeal of Tanzania. It is trite law that leave can be granted by this court if the applicant's shows that there are legal and factual issues for determination by the Court of Appeal of Tanzania on that basis he cited the case of Said Ramadhani Muyanga v Abdallah Saleh [1996] TLR 75 where it was held that for leave to be granted there must be a contentious issue of law. Having unfleetingly reviewed the depositions in the affidavit sworn on 08th October, 2020, specifically on paragraphs 13 (a), (b), and (c) the applicant averred that there are three points of law which attracts the attention of the Court of Appeal of Tanzania to determine the impugned decision of this court. The said points of law are as follows: - a) Whether the exclusion of time in obtaining certified copies of Judgment and decree and or order appealed against under Section 19(2) of the Law of Limitation Act Cap 89 [R.E.2019] is automatic or subject to an application for extension of time to the court. b) Whether the limitation period for appealing against the decision and order originating from the District Land and Housing Tribunals starts to run from the date when the Judgment and 3 decree of the intended decision to be impugned is delivered or supplied to unintending appellant if he has requested or applied for it. c) Whether the appellate Judge erred m law and fact when he tailed to observe that, since the applicants herein had applied for certified copies of Judgment and decree which are necessary documents for appeal purpose aga/nst the decision originating from DLHT, and the same were supplied on December, 2016 and the said Appeal was Lodged on 29h day ot December, 2(116. Issues such as propriety or otherwise of the Court's failure to determine whether the period for appeal against the decision originating from the District land and Housing Tribunal starts to run from the date when tne judgment was delivered or otherwise and whether appeal under section 19 (2) of the Law of Limitation Act, Cap. 89 is automatic or one has to apply for extension of time, are issues of general importance and they raise aprima factecase. Further, I have considered the oral account made by the applicant’s counsel and respondents learned counsels in support of the application. Thus, I am convinced that this case fits in the mould of cases for which there is a triable issue that attracts the attention of the Court of Appeal of Tanzania. Circumstances of this case reveal sufficient 4 reasons capable of exercising the Court's discretion and grant leave to appeal uo the Court of Aopeal of Tanzania. In consequence, this application succeeds. The appi-cant is granted leave to appeal to the Court of Appeal of Tanzania without costs. Order accordingly Dated at Dar es Salaam on this 28th October, 2021. A.Z.MG KWA JUDGE 28.10.2021 Ruling delivered on 28th October, 2021 in the presence of both parties. A.Z.MGEYEKWA JUDGE 28.10.2021 5