nasma kabululu vs naima msoke 2020 tzhc 4242 8 december 2020

- - -- -- -- - - -- IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA MISC. CIVIL APPLICATION No. 38/2019 (Arising from Probate & Adm. Appeal No. 38/2019, Civil Appeal No. 28/2017 of Bukoba D/C and Original Probate & Adm. Cause No. 04/2017 of Kyaka Primary Court) NASMA KABULULU -----------------------------------------APPLICANT VERSUS NAIMA MSOKE -----------------------------------------RESPONDENT RULING Olfh December, 2020 Kilekamajenga, J. The applicant appeared before this Court seeking an order for re - admission of the appeal which was dismissed on 19/08/2019. The application was made under Rule 17 of the Civil Procedure (Appeals in Proceedings Originating in Primary Court) Rules Government Notice No. 312 of 1964, Order IX Rule 3 and Section 95 of the Civil Procedure Code, Cap. 33 RE 2019 and any other enabling previous of the law. The application is supported by an affidavit deposed by the applicant. When the case was called for hearing, the applicant appeared in person while the respondent was absent but represented by the learned Advocate Mr. Mswadick. 1 - - --- -- In her oral submission, the applicant advanced two major reasons why she failed to appear before the Court when the case was called for hearing. First, she informed the Court that when she filed the appeal, she was informed that she will be notified by the Court through a summons. She thereafter followed-up the summons for almost ten (10) months but ended in vain. Second, she was involved in an accident and broke her leg. This was, unfortunately, the second incident of the accident. After the accident, she was unable to follow-up the case and the same was finally dismissed for want of prosecution. On the other hand, the counsel for the respondent resisted the application . He argued that the re - admission of a case is the discretion of the Court. However, the applicant must show reasons and account for every day of the delay. He referred the Court to the case of Elius Mwakalinga v. Domina Kagaruki and 5 others, Civil Application No. 120/17 of 2018. The counsel for the respondent argued further that the applicant has failed to prove that she followed - up the case for ten (10) months because she did not attach the register book from the entrance gate of this Court. Also, the allegation that she was involved in an accident has no proof because the certificate attached to the applicant's affidavit bears the name of Agnes Kabululu and not the applicant. Mr. Mswadick urged further 2 -- -- . . -._....._,..._ that, so long as the applicant has failed to show good reasons, the application should be dismissed. When rejoining, the applicant stated that Agnes Kabululu is also her name which appears in the records of Court file. She insisted that the application should be heard on merit for her rights to be determined. After considering the submissions from the parties, it is pertinent at this stage to determine the merits in the application. For the application of this nature, there must be good cause to warrant the Court order re - admission of the appeal which was previously dismissed for want of prosecution. I have considered the two reasons advanced by the applicant, and having considered that this is a probate case, it would be grave injustice to deny the application because it would mean that the applicant's rights have been terminated without hearing the case on merit. I see good reasons why the application should be allowed for the case/appeal to be heard on merit. I hereby allow the application. No order as to costs. Order accordingly. NteE~ga JUDGE 08/12/2020 3 .. - - .. --- .. -- Court: Ruling delivered this 08th December, 2020 in the presence of the counsel for the respondent, Mr. Mswadick and the applicant present in person. Right of Appeal explained. 4