Sophia Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. CIVIL APPLICATION NO. 25928 OF 2024 (Arising from Land Appeal No.18294 of 2024 of the High Court of Tanzania) SOPHIA JOSHUA KIHINGA………………….....………………. APPELLANT VERSUS HUSSEIN ALLY SIMBA ...…….......................................RESPONDENT RULING 14th & 19th March, 2025 CHUMA, J. The applicant had preferred this application seeking the court to vacate its dismissal order for want of prosecution in Land Appeal No. 18294 of 2024 which was issued on the 26th day of September, 2024. The application was made under Order XXXIX Rule 19 of the Civil Procedure Code Cap. 33 R. E 2019 (the CPC) and supported by the affidavit of Feran Lello Kweka the applicant’s advocate. The respondent was served through Mwananchi Newspaper dated 10/02/2025 but he neither filed a counter affidavit nor entered appearance. During the hearing, the applicant was represented by Mr. Feran Kweka senior Learned advocate. Mr. Kweka adopted the affidavit supporting the application and submitted that this application emanates from the dismissal dated 1|Page 26/9/2024 in Civil Land Appeal No.18294.The reason behind this application is the illness of the client’s advocate who was engaged to represent the applicant. They attended Mwanza Dental Unit Health Service from 11th September to 14th September as proved by annexure KLC-2 to the affidavit. This health was critical beyond his control hence he failed to enter an appearance in court on the material date as a result the application was dismissed. That illness suffices to stand as sufficient reason to set aside the dismissal order as stated in the cases of Loshilu Karaine and three others V Abraham Melkizedeck Kaaya (Suing as Legal Personal Representative of Gladness Kaaya), Civil Appeal no 534 of 2020 and Hongyang International Company Limited V Badr East African Enterprises Limited, Civil Application No.13777 of 2024 (both unreported). He prayed for this court to allow the application by vacating its dismissal order. From the applicants’ submission via Mr. Kweka's advocate and the affidavit supporting this application, it is beyond doubt that this court is bestowed with powers to restore the appeal which was dismissed for non- appearance. The law in this aspect is well settled under Order XXXIX Rule 19 of the CPC provides as follows; “Where an appeal is dismissed under sub-rule (2), of rule 11 or rule 17 or rule 18, the appellant may apply to the 2|Page Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.” Therefore, for the application to set aside the dismissal order and restore the appeal which was dismissed for non-appearance, the applicant needs to advance sufficient reasons which precluded him from appearing before the court. In the instant matter, the applicant has advanced one ground of illness. The counsel for the applicant who had instruction to appear on 26/9/2024 was sick and the applicant didn’t know that the matter was fixed for that date. According to Annexture KLC-2 attached to the affidavit, Mr. Kweka was under the Emergency Department from 12/09/2024 to 14/09/2024. Under paragraph 4 of the affidavit, he was still sick on 26/9/2024 when the appeal was scheduled for hearing. In numerous cases, the court has decided that sickness is a supervening event hence uncontrollable. In the case of Alasai Josiah (Suing by his Attorney Oscar Sawuka) V Lotus Valley Ltd, Civil Appl. No. 498/12 of 2019, the court of appeal had the following to say on page 8; 3|Page “Sickness is beyond human control and therefore nobody will fault the applicant for being sick. His Attorney has explained why he failed to attend to the respondent's intended appeal.” Also in the case of John David Kashekya V The Attorney General, Civil Application No. 107 of 2012 (unreported), cited with approval the case of Loshilu Karaine (supra) the court of appeal said; "Sickness is a condition which is experienced by a person who is sick. It is not a shared experience. Except for children who are yet in a position to express their feelings, it is the sick person who can express his/her conditions whether he/she has the strength to move, work, and do whatever kind of work he is required to do." Having considered the reasons advanced by the applicant, I find this application meritable. I therefore set aside this court’s order dismissing Land Appeal No. 18294 of 2024 dated 26/9/2024 and restore the appeal under Order XXXIX Rule 19 of the CPC. I make no order as to costs. It is so ordered. DATED at MWANZA this 19th day of March 2025. W. M. CHUMA JUDGE 4|Page Ruling delivered in court in attendance of Ms. Hidaya advocate holding brief of Mr. Kweka advocate for the applicant in absence of the respondent this 19th March, 2025. W.M. CHUMA JUDGE 5|Page