mwajuma mohamed kusengwa vs salum mohamed kusengwa 2020 tzhc 4314 14 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA PC PROBATE APPEAL NO. 2 OF 2020 (Arising from Probate Appeal No. 02 of 2019 in the District Court of Igunga and Probate Cause No. 05 of Igunga Urban Primary Court) MWAJUMA MOHAMED KUSENGWA---------------------- APPELLANT VERSUS SALUM MOHAMED KUSENGWA------------------------ RESPONDENT JUDGMENT 07/12 & 14/12/2020. BAHATI, J.: This appeal is between two blood relatives Mwajuma Mohamed Kusengwa hereinafter referred to as appellant and Salum Mohamed Kusengwa who appeared as the respondent. Following an application by the respondent for the administration of the estate of their late father Mohamed Kusengwa at Igunga Urban primary court, the respondent Salum Mohamed Kusengwa was appointed an administrator of the estate of the late Mohamed r/4 Kusengwa who died intestate on 3 November 2000. 1 The antipathy between these two relatives started at the execution stage where the appellant Mwajuma Mohamed Kusengwa was dissatisfied by the accounts of estate presented to the court by the administrator Salum Mohamed Kusengwa. The appellant lodged a caveat at the trial court and after hearing of the caveat, the case did not end into the appellant's likings. Still aggrieved she lodged an appeal to the District Court parading several grounds of appeal, but before the matter could be disposed of, the respondent raised one point of preliminary objection that the appeal is time-barred; upon hearing of the preliminary objection, the district court upheld the objection and thereby dismissed the appeal for being out of time. Dissatisfied, the appellant has lodged this appeal armed with one ground which goes thus:- 1. That, the honorable Magistrate erred in law and facts for ruling that the Appellant filed a petition of Appeal on 15/05/2019 as per received stamp of the office. When the matter was called for hearing Mr. Mwigamba Sosthenes, learned counsel appeared for the appellant whereas Mr. Samwel Ndanga also learned counsel appeared for the respondent. Mr. Mwigamba submitted that the District Court Magistrate directed her mind into petition document to calculate the time when 2 the petition was lodged in court which was not proper, Mr. Mwigamba added that he went through the record of the court to find that the District Court record shows that the petition was received in court on 15/05/2019 but the receipt shows that payment was effected on 14/05/2019 which means the payment was effected before the petition document was received in court, it is Mr. Mwigamba claims that alone shows that the trial was unfair. That, on page 11 of the DC proceedings his client had been complaining of unfair hearing and unfair distribution of the deceased estate, he prayed this court to invoke its powers under section 95 of Civil Procedure Code, Cap. 33 to quash the decision of the first appellate court as it is full of irregularities. In reply Mr. Ndanga started by stating that the law of limitation knows no sympathy, he added that the law under section 20 of the Magistrates' Courts Act, Cap. 11 to that effect. The record of the Court shows that the Primary Court decision was delivered on 12/04/2019 and as per section 20 (3) of Magistrate's Courts Act, Cap. 11, the appeal is within 30 days. The appeal was filed at the District Court on 15/05/2019 the time when the prescribed time had expired; the appellant was supposed to file an appeal on or before 10/05/2019 as the days are calculated from the date the decision was delivered. 3 He further submitted that it is trite law that delays without reason render an appeal incompetent, the appellant's appeal delayed for five (5) days that is why the District Court decided to dismiss it as it was out of time. It appears that the appellant was negligent because the petition document shows that it was prepared on 10/05/2019 and it was filed in court on 15/05/2019. He thus prayed this court to dismiss the appeal with costs. In rejoinder, Mr. Mwigamba insisted that there are illegalities that have been seen on the face of the record and it is through those illegalities his client lost an appeal. The first appellate magistrate was supposed to have a check on those illegalities. He claimed that the records of the District Court are not clear about the date the petition was filed whether it was on 10/05/2019, 14/05/2019, or 15/05/2019. Having heard from both parties, I had an opportunity to go through the record of the two courts' case files and I came up with the results that the final decision of Igunga Primary Court was delivered on 14/04/2019 before Hon. Kessy, RM. As per section 20 (3) of the Magistrates' Courts Act Cap 11 the appellant ought to have lodged an appeal before the District Court on or before 11/05/2019. Before I proceed to determine the merit or otherwise of this appeal, I found it apposite to remind the learned counsel for the 4 appellant that, this is an appeal against the decision of the District Court and not an application for extension of time. If this were an application for extension his grounds on illegalities would be sufficient for the court to grant an extension of time. It is trite law that extension of time is sought by an applicant and the court finds that there were some irregularities that need the wisdom of the court to be cleared, that alone would be the reason to award extension of time, and this should not be mistaken with an appeal like this. The issue for determination herein is whether the appeal was lodged in time, the case of Joyce Joram Lemenya vs Patrick Lemenya & another Misc Land Application No. 93 of 2017 HC Dodoma cited by the appellant is irrelevant to this appeal. Back to the core of this appeal, the appellant claims that the record is not proper on the date the petition was lodged in court, having calculated the days from the date the trial court judgment was delivered it is apparent that the appellant ought to have lodged an appeal on or before 11/05/2019, it means the appellant delayed for four days. If we take the position that the proper date is that on payment receipt which is 14/05/2019 still, the appellant would be late. In the upshot, it is evident that the District Court was proper in dismissing the appeal for being out of time. I hereby dismiss this appeal for lack of merit. 5 Ordered accordingly. A. A. BAHATI JUDGE 14/12/2020 Judgment delivered under my hand and seal of the court in the chamber, this 14th day December, 2020 in the presence of both parties. A. A. BAHATI JUDGE 14/12/2020 Right of appeal is explained. A. A. BAHATI JUDGE 14/12/2020 6