ramadhani juma vs peter kwandiwa administrator of the estate of the late mathias kwandiwa 2023 tzhc 23607 15 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA MISC. LAND APPLICATION NO. 72 OF 2022 RAMADHANI JUMA ••....••••••••••• II. II. II •••••••••••••• II. II ••••• APPLICANT VERSUS PETER KW ANDIWA (Administrator of the estate of the late Mathias Kwandiwa) .•.•.•••.•••••.•••.•• RESPONDENT [Application from the Decision of the District Land and Housing Tribunal for Shinyanga.] (Hon. Paulos L.S. Lekamoi, Chairman) dated the 15th day of March, 2022 in Misc. Land Application No. 26 of 2017 RULING 31st August & iSh December, 2023. S.M. KULITA, l. This is an application for extension of time. It has been filed by the Applicant by way of chamber summons in terms of the provisions of sections 14(1) of the Law of Limitation Act [Cap. 89 RE 2019]. In the chamber summons, the Applicant prays for this court to grant extension of time to lodge revision against an order related to the execution of 1 September, 2019. Facts of the case reveal that, the applicant (Ramadhani Juma) went on enjoying the land undisturbed till 16th May, 2022 when he found his 18 cement poles that he had erected on the border uprooted and several trees cut down from the land that he had been given in execution. Owing to what he has found on his land, the applicant decided to go to the village officer. Thereat he found documents showing that, the District Land and Housing Tribunal for Kahama, also appointed a Court Broker, Mkasiwa, for execution of the same area through the application made before that said tribunal by the Respondent herein. Upon going to the District Land and Housing Tribunal for Kahama to see as to what happened following the fact that execution of the Decree in Land Application No. 72 of 2014 of District Land and Housing Tribunal for Shinyanga had already been done, the applicant was given several dates to follow up the answer. Lastly, on 30th June, 2022, he was informed by the Kahama Tribunal that, as the execution had already been done, nothing more could be done by them. In the intended application for Revision, the applicant wants to challenge the following; one, as Application No. 72 of 2014 had emanated from the District Land and Housing Tribunal for Shinyanga, the Kahama 3 extension of time. To buttress his assertion, Mr. Frank Samwel cited the case of Laurent Simon Assenga V. Joseph Magoso and 2 Others, Civil Application No. 50 of 2016, CAT at DSM. In his reply the respondent stated that, as the suit land is located in Kahama District, the Land Tribunal for Shinyanga had powers to send her decree to Kahama Tribunal for execution. Concerning the execution being done for the second time, the respondent stated that, the first Court Broker namely Abajaja evicted the respondent instead of separating the parties' premises into their respective pieces of lands whose border was the sisal plants. As such, he said that, the said Court Broker, Abajaja, failed to execute, that is why the Tribunal of Kahama appointed another Court Broker to execute the said decree in the said Land Application No. 72 of 2014. The respondent further asserted that, in this application the applicant ought to have accounted for each day of delay, but he didn't. He contended that, as the applicant knew just on the second day that the decree was executed on 15th May, 2022, he ought to have directly filed his revision without going to Kahama Land Tribunal to seek for clarification. To him, that was a purposeful delay. 5 Abajaja Court Broker executed a decree in Land Application No. 72 of 2014 by evicting the respondent from one-acre piece of land and gave it to the applicant. The fact that, another Court Broker known as Mkasiwa Auction and Court Broker Company Limited was then appointed to again execute on the same decree for Land Application No. 72 of 2014, that is where the merit of this application stems according to the Applicant's Counsel, Mr. Frank Samwel. According to Mr. Frank Samwel, in re-executing the decree which had already been executed several years way back, the applicant should have been engaged to support or object the anomaly alleged to have been done by the former Court Broker, if any, before the appointment of another Court Broker. With this, Mr. Frank Samwel states that, the applicant was denied of his right to be heard. In his submission, the respondent never disputed that the applicant was denied of his right to be heard. He is silent on this issue, though he admits that the land tribunal decided to appoint another Court Broker for re-execution of the same decree. It follows therefore that, had the Tribunal been either moved by one party, or moved itself suo motto, in appointing another Court Broker to execute the same decree after another 7 constitutes ''sufficient reasons" within the meaning of rule 8 of the Rules for extending time" In view of the fact that there is an alleged illegality on the procedures followed in respect of the decision of the District Land and Housing Tribunal for Kahama when it decided to re-appoint another Court Broker to re-execute the decree, which the former Court Broker had already executed, without giving both parties the right to be heard, I find it appropriate to allow the application on the basis of this point of illegality. For the reason stated herein above, the application for extension of time is granted. I hereby order the application for Revision by the applicant herein to be filed within a period of thirty (30) days from the date of delivery of this Ruling. Costs will be in the main cause. ~ S.M. KULITA JUDGE 15/12/2023 9