SAVERA JASSON 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA MISC. CIVIL APPLICATION NO. 28035 OF 2024 (Arising from PC Civil Appeal No. 27894 of2023 High Court of Tanzania at Bukoba) SAVELAJASSON MUHOZA..................................................... APPLICANT VERSUS GODWIN M. MUHOZA........................................................... 1st RESPONDENT ALFRED V. RUHILABAKE........................................................ 2nd RESPONDENT RULING ligand 11thMarch, 2025 BANZL J.: The applicant has filed this application seeking to restore PC Civil Appeal No. 27894 of 2023 which was dismissed by this Court (Hon. Kiwonde, J.) on 21/10/2024 for want of prosecution. The respondents through their joint counter affidavit contested the application. According to the record, on 21/10/2024 when the appeal was called for hearing, the appellant and the first respondent did not appear and it was the second respondent only who appeared. Following non-appearance of the appellant, the second respondent prayed for the appeal to be dismissed with costs. As a result, this Court granted the prayer and dismissed the appeal Page 1 of 5 with costs for want of prosecution. Because of such dismissal, the applicant has knocked the doors of this Court, but this time she is seeking for the Court to set aside the dismissal order and order for restoration of the appeal so that it may be heard on merit. At the hearing, all parties appeared in person, unrepresented. In her brief submission, the applicant prayed for re-admission of her appeal which was dismissed on 21/10/2024 because she arrived late at the court premises due to bad weather and rain. She therefore urged this Court to re-admit her appeal so that, it can be heard on merit. On his side, the first respondent argued that, on that date, the applicant did not come to court at all. Besides, on that day, there was no rain either at her place or here in Bukoba. He added that, after dismissal of the appeal, they stayed in court until 11:30 AM waiting to be supplied with copy of dismissal order but until when they left, the applicant had not arrived. In addition, the applicant did not bring any bus ticket to substantiate her claim that, on the material date, she travelled to Bukoba. On his side, the second respondent insisted that, on that date, there was no rain. In that regard, they prayed for the application to be dismissed with costs. In her rejoinder, the applicant insisted that, she arrived late and signed on the Page 2 of 5 visitors' register. Besides, the first respondent did not attend before the court as he alleged. She also signed on the register after being supplied with dismissal order. Having considered the submissions of parties and the available record, the issue for determination is whether the applicant has established sufficient cause which prevented her from appearing in court on the date of hearing. Rule 17 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN No. 312 of 1964 provides that: "Where an appeal has been dismissed under subrule (2) of 13 in default of appearance by the appellant, he or his agent may apply to the appellate court for the re-admission of the appeal; and if the court is satisfied that he was prevented by any sufficient cause from appearing either personally or by agent when the appeal was called on for hearing it may re-admit the appeal on such terms as to costs or otherwise as it thinks fit." It is apparent from the cited provisions that, this Court is vested with discretion to re-admit the appeal which was dismissed for non-appearance of the appellant if it is satisfied that, the appellant had been prevented by any sufficient cause from appearing either personally or his agent. In the matter at hand, the applicant claimed that, on the date when the appeal was Page 3 of 5 called for hearing, she appeared late due to bad weather. This contention was strongly disputed by the respondents who claimed that, there was no rain on that day. At paragraph 6 of her affidavit, the applicant has attached a letter of request of copy of visitors' register in order to establish that, she came to court and signed on the register in question. The said letter was received by the registry of this Court on 01/11/2024. However, she was never supplied with the copy of the requested register. Since the applicant was never supplied with such copy which in the main, was not under her control, I found it prudent and equitable to peruse the register in question whereby, the same reveals that, she arrived at court premises about 10:11 AM. In addition, the register for collection of copies of judgments, rulings, orders and proceedings indicates that, the applicant and second respondent collected the copy of dismissal order on the same date, 21/10/2024. All these verify the applicant's claim that, on the date when the appeal was called for hearing, she failed to appear before the court because she arrived late. In that regard, the contention by the first respondent that, the applicant did not come to Bukoba on that date as she was seen at home is unfounded considering the fact that, the first respondent himself was absent and never attended in court on that date. Had he been in court premises until 11:30 AM waiting to be supplied with copy of dismissal order as alleged, Page 4 of 5 he would have entered appearance and collected his copy on the same date just like the applicant and the second respondent. For those reasons, I am satisfied that, the applicant has sufficiently adduced reasons for failure to attend before the court on 21/10/2024 when the case was dismissed for want of prosecution. In that regard, I grant the application by setting aside the dismissal order dated 21/10/2024 and re­ admit PC Civil Appeal No. 27894 of 2023. Since this application originates from probate matter, I make no order as to costs. I. K. BANZI JUDGE 11/03/2025 Delivered this 11th day of March, 2025 in the presence of the applicant, both respondents, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala RMA.