TEBELO

IN THE HIGH COURT (MWANZA SUB-REGISTRY) AT MWANZA LAND APPEAL NO.26512 OF 2023 (Arising from the Land Application No. 529 of 2018 in the District Land and Housing Tribunal for Mwanza) NATIONAL INDUSTRIAL AND COMMERCIAL BANK (T) LTD……………………………………………APPELLANT VERSUS GETRUDA MUSSA TEBELO…………………………………………1ST RESPONDENT STEVEN MGINYA MALIGA………………………………………..2ND RESPONDENT RULING 12th & 18th November, 2024 KAMANA, J. On 25th August, 2023, Getruda Mussa Tebelo and Steven Mginya Maliga, the respondents, won a suit against National Industrial and Commercial Bank (T) Ltd, the appellant, in Land Application No. 529 of 2018 in the District Land and Housing Tribunal for Mwanza (DLHT). Dissatisfied, the appellant filed an appeal in this court. However, the same was preliminarily objected to by the respondents on the ground that the appeal was filed beyond the prescribed time. By the order of this court, the preliminary objection was argued by way of written submissions. The respondents’ submission was prepared 1 and filed by Mr. Mdimi Ilanga, learned Counsel. Mr. Godfrey Goyayi, learned Counsel prepared and filed the appellant’s submission. Submitting in support of the preliminary objection, Mr. Ilanga prefaced by contending that an appeal from the DLHT when exercising original jurisdiction ought to be filed within 45 days as per section 45(1) and (2) of the Land Disputes Courts Act, Cap. 216 [RE.2019]. Based on the said section, he argued that the instant appeal had been filed beyond the prescribed time. He amplified that by counting 45 days from 25th August, 2018 when the impugned ruling was delivered, the appeal ought to be filed on 6th October, 2023. He held the view that by being filed on 30th November, 2023, the appeal was hopelessly time barred and the only recourse that was available to the applicant was to seek an extension of time to file the appeal out of the prescribed time. Having taken that position, Mr. Ilanga invited this court to employ section 3(1) of the Law of Limitation Act, Cap. 89 [RE.2019] (LLA) and dismiss the appeal. He strengthened his arguments by citing the cases of Anderson Mwakunsye v. Martin Ndunguru, Misc. Land Application No. 119 of 2020-HC (Unreported); and Matage Nyambega v. Rhobi Bageni, Civil Appeal No.311 of 2021-CAT (Unreported). Responding, Mr. Goyayi conceded to his counterpart’s argument that the appeal from the DLHT when exercising original jurisdiction must 2 be filed within 45 days from the date of the impugned ruling. While he took the position, he argued that the appellant failed to file the appeal within the stated time since he was required under the provisions of Order XXXIX Rule 11 (1) of the Civil Procedure Code, Cap 33 [RE.2019] to annex the impugned ruling and the decree. In such circumstances, Mr. Goyayi contended that the applicant wrote two letters requesting the DLHT to supply him with copies of the ruling and decree. The learned Counsel explained that the requested copies were certified and supplied to the applicant on 10th October, 2023. He argued that the 45 days are supposed to be counted from when the copies were certified as it is the position of the law that the time to appeal runs against the appellant when the copies are certified. He relied on the case of Bukoba Municipal Council v. New Metro Merchandise, Civil Appeal No. 374 of 2021-CAT (Unreported). To cement his argument, Mr. Goyayi referred this court to section 19(1) of the LLA which stipulates that the time spent in obtaining a copy of the decree ought to be excluded when counting the period of limitation for appealing. Fortified by that position, he urged this court to exclude the time from 25th August, 2023 to 10th October, 2023 as it was spent in obtaining the decree. 3 Mr. Goyayi added that it was incorrect for Mr. Ilanga to assert that the appeal was filed on 30th November, 2023. Elaborating on the point, Mr. Goyayi contended as per the electronic Case Management System, the matter was filed on 23rd November, 2023. Hence, he held the view that the appeal was filed within the time. I have painstakingly gone through the competing arguments and the cited authorities. As rightly argued by Mr. Ilanga and Mr. Goyayi, an appeal from the DLHT when exercising its original jurisdiction ought to be filed within 45 days from when the impugned ruling was delivered. In this, I see no reason to reproduce the provisions of section 45(1) and 2 of Cap. 216. I further agree with Mr. Goyayi that the time spent in obtaining the judgment and the decree for the purpose of filing an appeal must be automatically excluded by the court when counting the time with a view to establishing whether the appeal has been filed within the time or otherwise. In this, I think it necessary to reproduce the provisions of section 19(2) of the LLA as follows: ‘In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgment, the day on which the judgment complained of was delivered, and the period of time 4 requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded.’ In supporting his arguments, Mr. Goyayi cited the case of Bukoba Municipal Council (Supra). In the cited case, the Court of Appeal had time to interpret the provisions of section 19(2) and concluded that the period spent in obtaining the judgment and decree for the purpose of lodging an appeal must be excluded. Much as I subscribe to that position of the Court of Appeal, it should also be noted that in reaching the said position, the Court of Appeal cited with approval its earlier decision in the case of Alex Senkoro and 3 Others v. Eliambuya Lyimo (as administrator of the estate of Frederick Lyimo, deceased), Civil Appeal No. 16 of 2017-CAT (Unreported). In the cited case, the Court of Appeal held the view that despite the provisions of section 19(2) of the LLA to provide automatic exclusion of the days spent in obtaining the judgment and decree, there are conditions that must be met to invoke the provisions. The Court of Appeal stated: ‘...the exclusion is automatic as long as there is proof on the record of the dates of the critical events for the reckoning of the prescribed limitation period. For the 5 purpose of section 19 (2) and (3) of the LLA these dates are the date of the impugned decision, the date on which a copy of the decree or judgment was requested and the date of the supply of the requested document.’ My perusal of the records revealed that the impugned decision was delivered on 25th August, 2023. It is also revealed that on 28th September, 2023, the appellant, through Mr. Goyayi, wrote a letter to the DLHT requesting copies of the ruling and the decree. Further, on 31st August, 2023 another letter was written by Mr. Goyayi requesting the said copies. Likewise, the records revealed that the ruling was certified by the DLHT on 10th October, 2023. That being the position, I am constrained to exclude the period between 25th August, 2023 when the ruling was delivered and 10th October, 2023 when the ruling was obtained. Having taken that position, it is my considered view that the time against the appellant started to run on 11th October, 2023. Counting from that date, the 45th day was 24th November, 2024. Since there were divergent views on when the 45th day was, I consulted the electronic Case Management System to ascertain when the appeal was filed. According to the exchequer receipt, the filing fees were paid by Mr. Goyayi on 24th November, 2023 which was the 45th day. 6 In the final analysis, the preliminary objection is devoid of merits. The same is dismissed with costs. Order accordingly. DATED at MWANZA this 18th November, 2024. KS KAMANA JUDGE 7