Saidi Selemani Ktembo

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO MISC. CIVIL APPLICATION NO. 71467 OF 2024 (Arising from ruling in Civil Revision No.8169 of 2024) SAID SELEMANI KATEMBO 1^^ APPLICANT HUSSEIN RASHID 2'^'^ APPLICANT VERSUS IDDI RAJABU KIKONEKA RESPONDENT ' r V|<|E PILI MAZOEA 2^° RESPONDENT Date of Last Order: 13-11-2024 Date of Ruiing:06-12-2024 A:!:' Ai RULING MAGOIGA,3. Ac n The applicants, SAID SELEMANI, KATEMBO AND ; HUSSEIN ^SHID by way of chamber sbmmdns'pfefefred^^ instant applickidn under the provisions of section 11(1) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019] and section,>95 of the Civil Procedure Code,[Cap 33 R.E.2019] praying for extension of time to file notice of appeal against the ruling of this court dated 12^*^ day of July 2024 in Civil Revision No.8169 of 2024 and serve a jetter pf requesting for re^^^^^ of appeal to the respondent any other order the court may deem fit. ■ ■ ■■ :-.i ^iiiT!nA]r;£rDF:i The chamber summons was accompanied by the affidavit of the applicants stating the reasons why this application should be granted. •w?-' .. .-i-" rJ" .. i-.-. .. i. V -1 . - -'-A-,-'.- Upon being served with chamber summons and affidavit, the respondents through Mr. Christopher Mgalla, learned advocate for the respondents filed a counter affidavit stating the reasons why this application should not be granted. The facts pertaining to this application are not complicated. The respondent instituted Land Application No.19 of 2012 against the applicants and 2"*^ respondent herein in Mikese Ward Tribunal which adjudged in their favour of the 1®^ respondents. No appeal was preferred since then. Later, the 1^*^ respondent filed execution proceedings befpre the District Land and Housing Tribunal for Morogoro, which was resisted by the applicants that |s inexecptable buLthe DLHT on merits allowed execution to proceed. The applicants were not happy and opted to file revision in this court vjde Misc. Ciyjl Revision No. 3169 of 2024. The revision was heardJpter parties on merits but was dismissecj on 12^^ July, 2024 for want of merits. Since 12^^ July, 2024, no legaj steps were taken by the applicants, but on, 27'^'^ day of September, 2024 the lAiQ ■•Tciji.mg TribL-Vid; lor iborogorcp wir.bvv'jd fesssrev applicants filed this application, in the first place, fpr extension of time to file both notice of appeal and in the seppnd place, for extension of time to serve the pfTf'l ' letter requesting • iv'V.b I'b proceedings, j r; ; f f jS to the respondents J ^ V (Qb: '...i'b'i f asI 'lrequired -Jt." tf A-Olb by law to any litigant who want to appeal,from the decision of this court. b dUbbb binbd iZ' ■ Jid), zzz' , rz; izzdi vtep rz 27^' ' dc-; of S:z-d-.,: dl'd' , ' ■ 'Zdz rb It is against the backdrop of the events, that triggered this application, ] hence, this ruling. When this application was-called on for hearing, the applicants were enjoying the legal services of Mr. Baraka Lweeka and Ms. Susan Mafwele, learned advocates; whereas the respondents had the services of Mr. Christopher Mgalia, learned advocate. Mr. Lweeka arguing the application adgpted the contents of the affidavit and went on pointing out that after the ruling which the applicants were aggrieved with, immediatpiy instructed their then teamed advocate Mr, Bartolmew Tarinio. to file^ notice of appeal and take ail necessary steps to appeal against the ruling of this court to the Court of appeal. The learned advocate for the applicants went on arguing that when the applicants made a follow up to their then learned advocate but ■" m; : apT)::; ' -On ■ ca were informed that everything is okay but on September, 202^ pot^d . •. U'icil ; :c . L, .i iU -I'-Ar U i'c that no notice was filed and letter requesting proceedings were not served appfiCci'V .. -.a,:,-,; 'aah/ ifYaaahiateiv inal;i'ia:i:ea haar tr^ia arairaa: to the respondents. On thjs issue, Mr, Lweeka urged this court to be guided by the case of Abdala Jurna Kambale Vs. Noradi Tilikp Mongela, Civil Appeal No. 231 of 2018 at Janziii, in which it was held that inaction or negligence of the applicants' previous advocate cannot be used to penalize the appellant. . .a a!aaa:ai ■ : ;;m, a. ■: lAi is'oaay autua; s.y' ' a ■ . vhh; -; •• '..t v!- ■■ ■ ;■ ■■ h:ar. -:ra:! iarqiaaStinp ^ .ar-,. -a- :sea/eh ■ '' VjSI;' " 'i 'Ai'y.: - i i -S C', - : ■h.ihya': h, a P. ;'h a, ' ;/. ' jhPaa ■ ' Va. iaa'aa' ^ naka/ , 'r..- -V ; C: Guided by the above stance, Mr. Lweeka invited this court not to punish the applicant because their previous advocate did not do as instructed by the applicants and went on to grant this application. Further arguments by the learned advocate for the applicants were that applicant decided to engage other advocates,(the current advocates) hence, this application for extension of time to file notice and serve the letter requesting proceedings to the respondents. It was the submissions ■ i-r. Lweekb fiot-tr of Mr. Lweeka that counting from^ 12^^ July, 2024 to 19^ September, 2024 the applicant acted diiigentiy qnd immediately they found out that no steps were taken, then diiigentiy again instructed the current advocated who from 19^^ September, 2024 to 27^\Spptember, 202^^ able to file this application after getting new.advocates, hence, have accounted for each day of delay. ^ .- ..p, Mr. Lweeka pointed out that apart from accounting for each day pf ■'nkMr; i J - k-onV:U. ' jUiV;, ^'0 19"' . .vJ.:-'' delay, there is illegality in the ruling whgre by this court held that the ■d! l(i disputed plot is known to the parties as such blessed the execution which ; ;:V .■ j dkydfVl'V cCKld'; inS-i.f dC; d";'J d M'; CyfkfU: is contrary to the holding in the case of Benedict Mh^gama Vs. Karajta Yohana, Civil Appeal No. 135 of 2021 at Janziii in which it was hgid •y-' . that without description of the boundaries the suit cannot be executed. Another case cited by the learned advocates for the applicants was the d. .". ■■ :■■■ 3 'Vd. ■ ■ Qky O: case of Lyamuya Constructipn Limi|:ed Vs. Board pf Trustees of riidpijtkd fik r r; .y; jyariied^k'"; SliCi'l iktlkky;;! ti'ic 0'^ Liiiiasited'Vs. BoaiV of 1Vy;0;a€aj;'^sf■ Christian Association of Tanzania, Civil Application No. 2 of 2010 - ' -M in Arusha, which set out conditions for grant of any application for extension of time. On the above reasons, Mr. Lweeka, in sfrong terms, urged this court to grant this application. On the other hand, in response, Mr. Mgalla adopted the contents of the counter affidavit and went: on^ pointing that no eyidence that the applicants instructed Mr. Tarimo to pursue the appeal and in the absence of Mr. Tarimo's affidavit stating what happened same remain a mere assertion not supported by anything and distinguished aii cases cited vyith the circumstances we have here. According to Mr. Mgaiia, no singie line in the affidavit of the appiicants stated why the ietter was not served and that had it been that deiay was caused by not being supplied vyith the records, it could make sense, and pointed out that what we see here is V i.ii"; negijgence and the bad conduct of the appiicants who don't want execution to be carried using uncailecj appiicatipns. In support of his stance, the iearned advocate for the respondents cited the case of Limu i1- '. iV ! Ham Yung Trading Cpmpany Limited Vs. Lucy Christence, p^ Appeal No. 219 of 2019 at Tanzlii, in which it was held that the duty to follow up the case is on the parties. . ^ JliCt :;u x; r'v ..ipihe sS or; -.hr; pcMi&s. ■ - j It was further argument of Mr. Mgalla that in the circumstances we have, the applicants dumped their case to Mr. Tarimo and the words / ^ against him are mere allegations. On iiiegaiity, Mr. Mgalla argued that no iiiegaiity can be seen in the .0 ruling subject of this application because the trial Tribunai visited the place with parties and showed ail boundaries and they all know the boundaries. On that note, urged this court to dismiss this application. ■0 /, . Mr. o.oaM; rne o;rojir;;:;r-oCcG'wc In rejoinder, Mr. Lweeka pointed out that Mr. Tarirno wrote a letter and argued that why not a notice was not filed is negligence of an advocate '' . ' . • . . -, . i iS-' a and should not be used to punish the appiicarits. He reiterated his prpyers. Having heard the rivaling arguments of the learned advocates and revisited the affidavit and counter affidavit in this nriatter, with due respect to the applicants I find this application is unmerited and exhibit a serious inaction not only to the applicants but to their former advocate. I will explain. One, as correctly argued by Mr. Mgalla, and rightly so in my view, no reason was given both in the affidavit and in oral submissions why the ■: :, ^ .g cg- to p;.;;GshiGG- rie feri:G:3Led h;;; pGayiprs.- ^ letter was not served to the respondent. Twq^ I arn quite avyare and live that in an application for extension of time, where iiiegaiity is prove an extension is imperative, but with due respect to. Mr. Lweeka, no iiiegaiity be it apparent on the face of the ruling nor by reading the whole ruling worth to grant this application has been pernsotrated. A mere allegation ; , ;v;.) Pi UJ ifi'i U; d; i.l j. , 7 ; , ! i ..'.. ..rv ; ;:y.- ■ ■1"! ;:; : ■... U f): : i); , ;. -. .I'-.." has baarrdi 'fiisoi".a:'Y--a : '"■&<} ■ . of illegality is not enough but the appiicant must demonstrate that one exists and is apparent on record. Hoiding that the parties know their boundaries, at any strength of imagination cannot be an iilegaiity. I wish to add that iiiegaiity must stern from the abrogation any known iaw or principai of law but not of from factual finding. Three, each case must be decided on its own peculiar facts and the fact of this case demonstrate that the appiicants want at any costs to bipck execution and their conduct mYC'S s; ■ ■ s S' . ■ the ^jooiicsnt niuss QCi'S'SHss-rdi':'; rsiss not only in this application but from thje originai decision is to empioy .. . ■ .■ ^ ■. ^. ;Yn-,ora. T\)e' tneii technical and uncalled applications which aii are aimed to see no ■■ ■" .' 'b v. Oi ImciQinaCiOn Ciii 1 VViSh i execution is successful and their conduct is other than an abuse of the court process. Their conduct, as such, is distinguishabie from the circumstances of other cases cited which were genuine had no such conduct. Four, in the absence of Mr. Tapmo's affidavit of what transpired as correctiy argued by Mr. Mgaiia,.and nghtiy so in my considered opinion, is other than, mere aiiegations wjthout any evidence to support the same. On the foregoing reasons,I hereby found this appiication without any useful merits and consequentiy reject it, and proceed to dismiss it in its entirety with costs. ..1 ' SidL; Order accordingiy. ! j 1 !; Dated at Morogoro this 6^^ day pf December 2024 ;".'S C; - ' : : -y '-'l : . bghviy 50 iO ihy .oi.obv-r 0 /v... .:-, Vvithoo-Yany •■rvioeoce k; loy/ooo i o: sooo:; ' : "''-oro;5-^:0 ; beoy^v foufb . .n v ^COL'/?> O \7 -2: ^'I IMIMAGOIGA -22 I'ltA JUDGE /^6-12-2024 COURT: Ruling deRverecT in the presence of the Ms. Susan Mafwele, learned advocate accompanied with the applicants and Mr. Christopher Mgaiia, learned advocate accompanied with the respondents at Morogoro on 06-12-2024. C:i O r ■j: ■z- -i. S. M. MAGOIGA rV-; ■RtiS^R R'/VRR: 06-12-2024 ■COpRiR COURT: RighiJoLappeal fully exjD^ihe^ ^V!r:l7 .R'--- i! : • ■ ■ ' tpu^o e; a. . Uj j: aoavJ&y ■ S. M. MAGOIGA JUDGE ;;r:'2 2.22• explained:.'p' P.. Mvy-naACPOiGe 22i-E:;8-:eV2-