rob v math

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA MISC. LAND CIVIL APPLICATION NO. 13543 OF 2024 (From the decision of the District Court of Nzega in PC Probate Appeal No. 1 of2023, Originating from Probate and Administration Cause No. 19 of2013 before Nyanza Primary Court in Nzega) ROBERT KULWA........................................................ APPLICANT VERSUS MATHIAS MICHAEL KAPANGALA (As Attorney of Christina Maganga Ngoboki)............ .................................................... . RESPONDENT Last order: 2/10/2024 Ruling date: 31/10/2024 RULING MANGO, J The Applicant Robert Kulwa, filed the application at hand praying for extension of time to appeal against the decision of the District Court of Nzega in PC Probate Appeal No. 01 of 2023. The application has been preferred by way of chamber summons made under section 25(l)(b) of the Magistrates Courts Act [Cap 11 R.E 2019], supported by an affidavit sworn by the Applicant's advocate, Kelvin Kayaga. The Respondent filed a counter affidavit contesting grant of orders sought in this application. In brief, the Applicant was appointed to be an administrator of the estate of the late Kulwa Maganga following the death of the former administrator of 1 the deceased's estate, Maganga Kulwa. On 5th July 2022, the Applicant filed an inventory before the Probate Court. The Court ordered beneficiaries to appear on 25th July 2022 to ascertain correctness of the properties listed as forming part of the estate of the late Kulwa Maganga. On 11th July 2022 the Respondent, Christina Maganga Ngoboki filed an objection against the inclusion of three pieces of land. According to her, the three pieces of land mentioned and described in her written objection which was filed before the probate Court, form part of the estate of the late Maganga Kulwa and not his son Kulwa Maganga. The probate Court entertained the dispute over land ownership between the administrator of the estate of the late Maganga Kulwa and the administrator of the estate of the late Kulwa Maganga but it did not declare any of the two to be the lawful owner of the disputed plots. Despite non declaration as to who among the two disputants is the lawful owner of the disputed pieces of land, the Court ordered the Applicant not to include the objected properties in the inventory. It also informed the Applicant of his right to object distribution of the estate of the late Maganga Kulwa since the late Kulwa maganga is among the beneficiaries of the estate of the late Maganga Kulwa which was not yet distributed to the heirs. Dissatisfied by the decision of the probate Court, the Applicant appealed before the District Court of Nzega via Probate Appeal No. 1 of 2023. On 14th February 2024, the appeal was dismissed for being time barred following an objection raised by the Respondent herein. The Applicant is dissatisfied with the decision of the District Court of Nzega in Probate Appeal No. 1 of 2023. Despite such desire, he noted that he is time barred to lodge his appeal. 2 Therefore he filed the application at hand praying for extension of time to lodge an appeal against the said decision. When the application was called on for hearing, the Applicant was represented by Mr. Kelvin Kayaga learned advocate while the Respondent was represented by Mr. Salehe Makunga learned advocate. In his submission, advocate Kayaga for the Applicant adopted the contents of the affidavit filed in support of the application. He prayed that, the application be granted because the Applicant has managed to account for the entire period of delay as reflected in the 1st to 12th para of the adopted affidavit. He also argued that the contents of the affidavit establish that, the Applicant has not sat idle but he was vigilant enough in pursuit of what he believes to be just on his party. The Applicant's counsel also advanced technical issues on performance of the case management system of the judiciary as among the grounds that contributed to the Applicant's delay to file his intended appeal. He referred the Court to the letter addressed to the Deputy Registrar of the High Court of Tanzania, Tabora sub registry, dated 15th March 2024 in which the Applicant's counsel communicated the challenges he faced in the electronic case management system of the judiciary. The learned counsel also pointed out that, the Applicant had once filed an appeal against the said decision but he had to withdraw the same with leave to refile after he noted that the appeal was filed beyond the prescribed time limit. He then filed the application at hand. Applicant's advocate portrayed the two acts as evidence of the Applicant's diligence in pursuing justice. He 3 referred the court to the case of Michael Lesani Kweka vs John Eliafye [1997] TLR 152 on the value of acting diligently in pursuit of justice. In his reply submission, advocate Makunga for the Respondent adopted the contents of the counter affidavit filed by the Respondent to form part of his submission. He then submitted that, the Applicant has not accounted for the delay with any sufficient cause to warrant the Court grant extension of time. He argued that, the Applicant has not stated what has restrained him from filing his appeal on each day of his 35 days of delay. He referred the Court to the contents of first to twelfth paragraphs of the adopted counter affidavit. He also submitted that, the Applicant slept over his right to appeal. According to the learned counsel, the delay for 35 days establishes the Applicant's deliberate decision not to pursue the appeal. It was his contention that, had the Applicant intended to take any action, he would have done so at the earliest possible time. He urged the Court to ignore the alleged diligence on the part of the Applicant as it is not supported by his conduct, inaction of the Applicant for 35 days. The learned advocate challenged the alleged technical issues in the electronic case management system of the judiciary on two grounds. First the Applicant's failure to prove the same, second the Applicant's failure to explain how the alleged technical issues have prevented him from filing his appeal on time. The Respondent's advocate submitted that, the Applicant was duty bound to prove existence of the alleged technical issues in the electronic case management system and how the same contributed to his failure to file the appeal on time. He submitted that, the Applicant was expected to attach an affidavit of the expert who deals with technical issues 4 regarding to the functioning of the case management system of the judiciary. The affidavit of the expert ought to have formed part of the Applicants affidavit so as to establish existence of the alleged technical challenges in the case management system of the judiciary. Unfortunately, the Applicant did not attach an affidavit of the Court officer. He pointed out that even the alleged letter written to the Deputy Registrar is not attached to the application served to the Respondent. He concluded that, the Applicant has failed to account for the delay and prayed to have the application dismissed with costs. In his rejoinder, Applicant's advocate reiterated his submission in chief and added that, the delay was only for 5 days and not 35 days as alleged by the Respondent's advocate. He also insisted that, the letter to the Deputy Registrar was attached to the application. He prayed the Court to verify the same from Court record as it appears in the electronic case database. The Court checked documents attached to the application as it appears in its electronic case management system and found the said letter to be among the documents which were attached by the Applicant in his application. I have considered submissions made by both parties and Court record. It is well established that extension of time is a discretion of the Court that need to be exercised judiciously. In ensuring that the discretion is exercised judiciously, the Applicant is required to account for every day of delay with a sufficient cause. In the Application at hand, the decision of the District Court of Nzega was delivered on 14th February 2024. The law section 25(l)(b) of the Magistrates Courts Act, [Cap. 11 R.E 2019] provides for time limit for appeals from the 5 decision of the District Court to High Court to be 30 days. Thus, the appeal ought to have been filed by 15th March 2024. Court record indicates that the Applicant filed his first appeal, PC Civil Appeal No. 6545 of 2024 on 26th March 2024 which is 11 days after the prescribed time limit. He also filed the application at hand on 9th June 2024 after withdrawal of his appeal on 07th May 2024. The Applicant accounted for the period from 7th May 2024 to 17th May 2024 as time spent waiting to be supplied with a copy of Court order in respect of the withdrawn appeal. Court record indicates that the Order was ready for collection on the date it was issued, that is, 7th May 2024 and not 17th May as it was alleged by the Applicant. Despite such observations, in computation of the period of delay the Court will consider that the order was supplied to the Applicant on 17th May 2024 as he alleged. The Application at hand was filed on 9th June 2024 which is 22 days from 17th May 2024 the date the Applicant collected a copy of the Court order in respect of the withdrawn appeal. Thus, the Applicant ought to have accounted the 11 days of delay before filing his previous appeal and 22 days from the informed withdrawal of his previous appeal to the date he filed the application at hand. In his attempt to account for the delay, the Applicant accounted for the period from 14th February 2024 to 20th February as the period spent waiting to be supplied with the decision subject of the appeal. He also accounted for the delay from 13th March 2024, to 21st March 2024 as time spent working on challenges pertaining to the filing process as stated in his letter dated 15th March 2024. Although the date on which a letter to Hon. Deputy Registrar is not clear, as the date seems to have been altered and appears to be either 6 25th or 15th March, I find it in the interest of justice to again give the Applicant the benefit of doubt. The Applicant did not account for the delay of 22 days after the withdrawal of his appeal to date of filing of the application at hand. Despite the Applicant's failure to account for the entire period of delay, I find it in the interest of justice to have the application granted. In granting the prayer I considered the fact that the electronic case database of the Judiciary indicates that the Applicant's appeal before the District Court was filed on 16th August 2023 as alleged by the Applicant and not 22nd September 2023 as ruled out by the District Court. The only way the decision of the District Court can be set aside is through an appeal. Thus, granting of this application is the only way of opening doors of justice for the Applicant. I also considered the fact that, the Respondent will not be prejudiced as she will also be heard before the appeal is determined on merits. For that reason the application is granted, with no order as to costs. The Applicant should file his appeal within 14 days from today. Dated at Tabora on this 31st October 2024 Z.D.MANGO JUDGE 7