rashidi makwamba and 126 others vs kilombero sugar company illovoand 2 others 2021 tzhclandd 6719 6 december 2021

IN THE HIGHCOURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 508 OF 2018 RASHID MAKWAMBA AND 126 OTHERS...... ...>..»APPLICANT VERSUS , KILOMBERO SUGAR COMPANY (ILLOVQ)... RES THE ATTORNEY GENERAL ..2'^'' RESPONDENT MINISTER FOR FINANCE RESPONDENT Last order:24/05/2021 Ruling date: 9/7/2021 RULING MANGO,!.(< The appliGatipn at hank is fptextension of time to iodge a notice of appeal to the Court df Appeal of Tanzania and file an application for leave to appeal to thk ^urt of Appeal of Tanzania against the decision of this Court in Land Case No^i5 pf 2003J The Application is by way of Chamber Summons made under Section 11 of the Appellate Jurisdictions Act,[Cap. 141 R. E. 2002], and Section 47(1) of the Land Disputes Courts Act,[Cap. 216 R.E 2002]supported by an Affidavit sworn by Rashid Makwamba. The Application was argued by way of Written Submission. The Applicants had services of Legal and Human Right Centre, while the Respondent had services of Dastan Kaijage, Learned Advocate. The 2"^^ and 3'"'' respondent have not filed their submission(s). According to the Applicant's Affidavit and submission, the reasons that contributed to the delay in filing Notice of Appeal and ap Application for leave include struck out of the Notice of Appeal which was filed, on time to the Court of Appeal, sickness of their Advocate, the late Josefu Mwakajinja, and withdrawal and struck out of a number of Applications filed by the Applicant seeking extension of time<to;file a Nptice of Appeal and apply for leave. < , The said reasons are aisp reflected in the Respondents submission as they appear in the first page of te subrnission. The relevant paragraph reads; ! '^ dissatisfied by the decision ofthe High Court, the Appiicants who iost the case filed a notice ofintention ofAppeal to Court ofAppeal, but [tiie CourtpfAppealof Tanzania struck out the Notice ofAppealon 31"^ ^May 2006 for waht of leave to Appeal. Since then the Appiicants through theirAttorney have been lodging Applications for extension of time withirriwhich to fiie a fresh Notice of Appeal and to lodge an Application for leave to Appeal out oftime without success since the saidApplication have been eitherstruck outby the Courtor withdrawn by the Appiicants foiiowing preliminary Objections raised by counsel for the Respondents. Such admission by the Respondent that the Applicants have always been in court corridors knocking the doors of justice establishes that, the Applicants have never been negligent in pursuing their Appeal. Their failure to Appeal on time was caused by technicalities that were beyond their control. It is trite law that in determining an Application for extension of time, the Court need to consider whether the Applicant has established good grounds for the delay of each day. In doing so the court need tQ/C,^nsider circumstances of each case independently. ^ ' I agree with the counsel for the Respon^ntthat there seps to be elements of negligence on the part of the. ApplicantsCadvocate. However, the arguments that the Applicants have not established a sufficient cause for the delay is not supported b^court record and even the contents of the first Respondent's submission. Court record and submissions made by both parties establishes that Applicants;;^ been constantly pursuing the intended appearthough they could not succeed for technical reasons. I find the applicants delay.to be more of a technical delay than actual delay. The call to^distinguish between actual and technical delay was made in the case of Fortiiiiatus Masha Versus William Shija and Another [1997] TLR "x ' 154 in whicb thelcoCirt held; "/H distinction shouid be drawn between cases invoiving reai and actual delays and those such as the present one which cieariy oniy involved technical delays in the sense that the original appeal waslodged in time but had been found to be incompetent for one reason or another reason and a fresh appeal had to be instituted.. The applicants were compelled to apply for extension of time foilowing struck out of their notice of appeal which was iodged before the Court of Appeal. After the struck out of the notice appeal, the applicants' road to approach the Court of Appeal has never been smooth as their subsequent applications for extension of time ended up being struck out or withdrawn due to technical reasons which were beyond the applicants control. is nowhere in court record that suggest the Applicarits delay,>as caused by inaction or negiigence on the part of the Appricants. \ For that reason, this Court do hereby grant the Applicants extension of time to fiie Notice of Appeal and an Application for Leave within 30 days from the date of extraction of the drawn order. , Costs to follow (events. op cv K/> o /■ -a Z. D. MAI^O % z. JUDGE ■X 09/07/2021 X O