tanduga mustafa nyakimwe 506 others vs kigoma ujiji municipal council another 2023 tzhc 19342 19 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA MISC. LAND CASE APPLICATION NO. 40 OF 2022 (Arising from Land Case No. 10 of 2016 of the High Court of Tanzania, at Tabora) TANDUGA MUSTAFA NYAKIMWE & 506 OTHERS ................................................... ...APPLICANTS VERSUS KIGOMA/UJIJI MUNICIPAL COUNCIL ........... 1st RESPONDENT TANZANIA PORTS AUTHORITY......................2nd RESPONDENT RULING Date of Last Order: 19/07/2023 Date of Delivery: 19/07/2023 MATUMA, J. The applicants lodged this application for extension of time to file notice of appeal to the Court of Appeal against the order of this Court (Rumanyika, J) which was delivered on 20/04/2017 in Land Case No. 10 Of 2016. In the impugned order, the learned Judge considered that it was inconvenient to adjudicate the matter containing more than 500 Plaintiffs. He thus suo motto striked ouLTheplaint and ordered the Plaintiffs to split into a number at least ten (10) plaintiffs per each case. The Applicants were aggrieved with such order and started some moves up to the Court of Appeal but finally it was to come in this court to initiate the process of having the said order vacated. The application was brought by way of Chamber Summons under S. 11(1) of Appellate Jurisdiction Act, [Cap. 141 R.E 2019) and accompanied by an affidavit sworn by Kelvin Kayaga learned advocate for the applicants. At the hearing of this Application Mr. Kelvin Kayaga learned advocate appeared for the Applicants while the respondents were represented by Mr. Samwel Mahuma and Mr. Gureni Mapande learned State Attorneys. Arguing for the application Mr. Kelvin Kayaga learned advocate adopted the contents of his affidavit and further submitted that the delay to file the notice appeal was prompted by several reasons including the delay of the Applicants to know that their suit was struck out and the time spent in prosecuting the matter up to the Court of Appeal level. He also argued on illegalities on the reasons that the order was entered in violation of the Applicants’ right to be heard and jurisdiction of the honourable Judge who assumed powers without assignment. To fortify his arguments Mr. Kelvin Kayaga learned advocate cited the case of Rose Irene Mbwete (administrator of the estate of the late Mary Dotnata Watondoha) v Phoebe Martin Kyomo.Civil Application No. 2 70/17 of 2019 in which illegality was stated to be a good ground for extension of time even if the period of the delay has not been accounted properly more so when the right to be heard has been violated. He prayed this application be granted. Mr. Mahuma and Mapande learned State Attorneys interchangeably argued that the Applicants have not accounted for any sufficient cause to warrant this application being granted. They made some arguments against this application but as rightly argued by Mr. Kelvin Kayaga, the arguments by the learned State Attorneys were words from the Bar for they are not accommodated in their counter affidavit which they adopted at the hearing of this application. It is undisputed fact that indeed the impugned order was reached by the court suo motto and without hearing the parties. The applicants are feeling to have been prejudiced by such order and are intending to challenge it to the superior court in this country. I have no good reason to close them out from pursuing their right to be heard. This alone is sufficient ground upon which this application has to be granted. In that respect I don’t see any need to dwell into other grounds as they have not been opposed by the Respondents in their Counter affidavit. I grant this application and extend the applicants fourteen (14) days from the date of this ruling within which they shall lodge their notice of intention to appeal todhe"Court of Appeal 3 of Tanzania. In the circumstances of this matterlurder that each party to bear its own costs. It is so ordered-^^ z^fuMA JUDGE 19/07/2023 COURT; Ruling delivered in chambers in the presence of Mr. Kelvin Kayaga learned advocate for the applicants Gureni Mapande lear torney for the re on MA JUDGE 19/07/2023 4