MRISHO MASHAKA GAMBO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA MISCELLANEOUS LAND APPLICATION NO. 000008435 OF 2024 MRISHO MASHAKA GAMBO & ANOTHER .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS AYOUB AHMED SHEDAFA (ADMINISTRATOR OF ESTATE OF THE LATE AHMED AYUBU SHEDAFA .............................. RESPONDENT / DEFENDANT RULING BADE, J, 29/08/2024 & 18/10/2024 BADE, J. This is an omnibus Application where the Applicants sought an order for an extension of time within which they can apply to set aside an order of this court, vide Land Case No. 07 of 2023 which struck out the defence of the 1st and 2nd Defendants delivered on 12th day of March 2024. The Other order being sought is setting aside the Court’s order that struck out the defence. This Application is made through a chamber summons supported by the Applicants’ counsel affidavit and has been preferred under sections 14(1) and (2) of the Law of Limitation Act Cap 89 RE 2019, and Order VIII Rule 20(2) and section 95 of the Civil Procedure Code Cap 33 RE 2019. The Applicant’s counsel affidavit has canvassed various facts in support of the Application explaining the reasons for seeking an extension of time and setting aside the order striking out the Applicant’s defence. The 1st Respondent filed a counter affidavit to oppose this Application, while all the other parties conceded to it. All the Counsel made oral submissions to dispose of the Application. The Applicants were represented by Mr. Henry Simon, learned Advocate, the 1st Respondent enjoyed the services of Mr. Mohamed Mhinda, learned advocate, while the 4th and 5th Respondents were represented by Mr. Leani Mbise, counsel for the State. Counsel for the Applicants adopted the contents of his affidavit to form part of his submission. He submitted that on the said date when their defence was struck out, he had asked the counsel for the Respondent (Mr. Mhinda) to hold his brief as he was indisposed to which he agreed but to his surprise, he was informed that their defence was struck out. He added that he was unwell and he had made the effort to inform his fellow counsel. Page. 1 It is further argued by Mr. Simon that he prays for the matter to be restored as the reasons for his absence were beyond his control. He referred this court to the hospital chits that he had attached to his affidavit and the case of Arasay Josiah vs Lotus Valley Ltd, Civil Application No. 408/12 of 2019, arguing that in setting aside the order that struck out the defence the court will ensure the Applicants enjoy their right to be heard, and if the order struck out the defence is left to stay then the Applicants will be deprived of their right to be heard. Opposing the Application, like his counterpart, Mr. Mhinda also adopted the contents of his counter-affidavit and submitted that it is not true that he met with the Applicant’s counsel on the date their defence was struck out nor had he instructed him to hold his brief or at all. Moreover, it is his view that it is quite unjustifiable that as an officer of the Court, the learned counsel would take a position to mislead the court on what had happened, and that the learned counsel had several options at his disposal including informing the court clerk, adding that the stated reasons do not warrant the setting aside of the order. It is Mr. Mhinda’s contention that the wasted time before this Application was filed is also unjustifiable as attaching the order is not a legal requirement, and neither is it so under Order VII Rule 20 of the Civil Procedure Code. It is further argued by Mr. Mhinda that counsel for the Applicants has not accounted for the number of the days delayed nor has he demonstrated on every day of the delay. He restated the law on the application for extension of time, which requires that the applicant should demonstrate on each number of days delayed, that is from the 12th day of March to the 18th day of April, 2024 when he filed the present Application. Arguing further, he maintains that the Applicant’s counsel did not explain what happened when the order was issued and supplied to him in April and filed the Application at a later date without accounting for the gap. Mr. Mhinda added that counsel for the Applicants did not demonstrate when exactly he recovered from his purported sickness. To support his argument, he cited the case of Bushiri Ally vs Anyegile Andendekisye and 2 others, Civil Appeal No. 49 of 2021. Rejoining, counsel for the Applicants submitted that on the 12th day of March, he was excused from duty for 3 days, which meant he had till Friday, while the 4th day was a Saturday. Further, on 18th March was when he requested for perusal of the file which was a Monday, and upon discovering that there was no Order in the file, he had requested for it. 2 days later he wrote yet another letter as deponed in paragraph 10 of his affidavit, and that it was only on 4th of April when he was supplied with the said Order. It is further argued by Mr. Simon that the authorities supplied by the 1st Respondent’s counsel are distinguishable, as the scenarios are quite different and irrelevant. Equally, he challenged the allegation that he did not state when he recovered from the sickness, arguing that this fact was not traversed in the Counter Affidavit by the 1st Respondent's counsel. Having considered the rival submission by parties, the issue calling for determination before me is whether the Applicants’ counsel managed to show a good cause to move this court to exercise its jurisdiction to grant the Application. In the case of Lyamuya Construction Co. Ltd vs Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010, there have been established guidelines to be Page. 2 followed before granting an extension of time which are; 1. The applicant must account for all the periods of delay. 2. Delay should not be inordinate. 3. The applicant must show diligence, and not apathy, negligence, or sloppiness in the prosecution of the action that he intends to take. 4. If the court feels that there are other sufficient important reasons such as the illegality of the decision sought to be challenged. The main reason given by the counsel for the Applicant to move this court to grant the Application is that he was unwell. That, after recovering from the sickness he made a follow-up of the proceedings and the order which took some time to obtain. The Order which struck out the Applicants’ defence was issued on 12/03/2024 and this Application was filed on 08/04/2024. Counting from 12/03/2024 to 08/04/2024 is about 27 days. However, according to Order VIII Rule 20 (2) of the Civil Procedure Code, an application to set aside the order is supposed to be filed within 14 days. So, Applicants were required to account from 27/03/2024 to 08/04/2024 which is about 13 days. The Counsel for the Applicant stated that he was exempted from duty for three days, a fact which is supported by his medical chits (annexure A1). It is also on the record that he made an application through letters dated 18/03/2024 and 20/03/2024 requesting for the perusal of the file and be supplied with a copy of the proceedings and Order, and according to “fomu maalumu kwa ajili ya utoaji wa nakala za hukumu bure” he was supplied with the same on 04/04/ 2024. This is an indication that he showed diligence and was not apathetic, negligent, or sloppy in the prosecution of the action that he intended to take. A delay of four days that is from 04/04/2024 when he was supplied with the copies of proceedings and order to 08/04/2024 when he filed this application, in my view, does not count as inordinate by any stretch of the imagination. The argument by the 1st Respondent's counsel that the instant Application was filed on 18/04/2024 and that attaching an Order is not a legal requirement is misconceived as the instant Application according to the date on the chamber summons was filed on 08/04/2024 and not 18/04/2024 as he alleged. Moreover, the fact that attaching an order is not a legal requirement does not mean that the Applicants were required to lodge an Application to set aside the said order without first ensuring that the particular order exists. Prudence would definitely require so. Having said so, this Application is granted and the Order striking out the 1st and 2nd Defendants defence is hereby set aside. Consequently, the case is now set for 1st PTC on November 21st, 2024 at 11 am It is so ordered. Dated at ARUSHA this 6th of November 2024 . Page. 3 A. Z BADE JUDGE OF THE HIGH COURT Page. 4