the registered trustees of chama cha mapinduzi vs elimsaad eliud kituma 81 others 2023 tzhc 23238 11 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI MISCELLANEOUS LAND APPLICATION NO. 42 OF 2023 (Arising from Land Case No. 06 of 2019)

THE REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI ……………………………………………….………… APPLICANT

VERSUS ELIMSAAD ELIUDI KITUMA …………………..…....……. 1ST RESPONDENT SUBIRA OMARY ……………………………………………... 2ND RESPONDENT MACKSHADOW JACOB KIPOKOLA ……………………… 3RD RESPONDENT LAURIAN MAXWELL LEIKULE …………………….……….4TH RESPONDENT ALLY MUHAMEDI SHEMUSANGA …………………………5TH RESPONDENT TWALIPO SALMINI TWALIPO …………………………….6TH RESPONDENT FLETASI PATROPA MANGOWI …………………………….7TH RESPONDENT ISRAEL ANDIRSON MUNISI………………………………..8TH RESPONDENT WILLIAM DOMINIC MLAMBO ……………………………..9TH RESPONDENT BDI SALIM KIPECHE ………………………….……………10TH RESPONDENT JACKLINE CLIFF MAKIYAO ……………………….………11ST RESPONDENT MWANAID JUMA SHEMUSANGA …………………..…...12ND RESPONDENT CHENGA JACOB MHINA ………………....……….…....…13RD RESPONDENT GEORGE EMMANUEL MAREALE ………………….……...14TH RESPONDENT VENANCE MELECK MMARY ……………………….………15TH RESPONDENT DONATILA MECKFASON WISSO ………………………..16TH RESPONDENT RAMLA HEMED MZAVA ……………………………………17TH RESPONDENT KAFTI MICHAEL EMMANUEL …………………………….18TH RESPONDENT ASIA ATHUMAN BENTA ……………………………………19TH RESPONDENT WILLIAM MWAKABUTA NSELELA ………………………20TH RESPONDENT ELIONORA SHIKIRAEL MBONIKA ……………………...21ST RESPONDENT ROBERT ELIUFOO KIMARO ……………………………...22ND RESPONDENT GERMANA E. AMARROW ………………………………….23RD RESPONDENT GRACE DAUD LYIMO ………………………………………24TH RESPONDENT STEPHEN SENKONDO ……………………………………..25TH RESPONDENT FELICE RAPHAEL MAEDA …………………………………26TH RESPONDENT 1 BEATRICE GEORGE MAREALLE ……………………………27TH RESPONDENT MARTIN

ALOYCE TESHA …………………………………….28TH RESPONDENT PAUL Y. SHIRIMA …………………………………………….29TH RESPONDENT GEORGE HENRY KAWICHE …………………………………30TH RESPONDENT MWANAHURU AMIRI SHEMBILU …………………………31ST RESPONDENT SERAPHIN JOSEPHAT MOSHA …………………………….32ND RESPONDENT KENNEDY KUNDAEL MUNISI ………………………………33RD RESPONDENT JUMA GOLIATI MMANGA ……………………………………34TH RESPONDENT MANENO LIYEJE MGAZWA …………………………………35TH RESPONDENT HERMAS H. KIONDO ……………………..………….………36TH RESPONDENT NIMROD LOCKEN URONU ………………………………….37TH RESPONDENT WILLIAM MGAYA LEMA …………………………………….38TH RESPONDENT JONATHAN SHAO …………………………………………….39TH RESPONDENT FLOMENA PAUL MREMA …………………….………………40TH RESPONDENT ELIAICHI ISAYA MWENDA ……………….………………..41ST RESPONDENT ALBAT MKINDI SHAYO …………………….……………….42ND RESPONDENT WITNESS NDELILIO MAFIE ……………….………………43RD RESPONDENT AMEN PARADISO URASSA ………………….……………..44TH RESPONDENT JUDITH ALOYCE KUNDI ………………….………………...45TH RESPONDENT LUCY J. MAINS ……………………….……………………….46TH RESPONDENT JOSEPH ALONDWA KAGIRO ……….………………………47TH RESPONDENT FRANCIS EDWARD SAUWA ………….…………………….48TH RESPONDENT FIRMAN JOHN LYRUU ……………………………………...49TH RESPONDENT MWINHUMA KIAZE MWENDA ………….…………………50TH RESPONDENT RICHARD MASIKA ………………………….………………..51ST RESPONDENT GODWIN RUMISHAEL KWEKA ……..…….………………52ND RESPONDENT CHARLES BANO KUDEMA …………………....…………….53RD RESPONDENT SAMUEL LEVIS NJAU …………………….………………….54TH RESPONDENT MARTINA SABAS MASSAWE

………….…………………..55TH RESPONDENT MARIETH F. KISAKA …………………….………………….56TH RESPONDENT DELPHINA ZAKARIA MAVERE …………….……….……..57TH RESPONDENT IBRAHIMU SHABANI MWANAJA ……….………….…….58TH RESPONDENT FERDINAND S. NDAKIDEMI ……………….……………..59TH RESPONDENT LAMECK LOCKEN URONU ………………….………………60TH RESPONDENT AISHA HAMISI NKYA ………………………….……………61ST RESPONDENT FROMINI THOMASI MUSHI ………………………………62ND RESPONDENT COLMAN STEPHEN TARIMO ………………………………63RD RESPONDENT CONSTANTINE MARIKI …………………………………….64TH RESPONDENT ANTHONY AUGUSTINO MASSAWE ………………………65TH RESPONDENT 2 HAPPY A. KOMBE ……………….……………………………66TH RESPONDENT EMILLIANI M. TEMU ………………………………………..67TH RESPONDENT ASHA JUMA OLOTU ………………………………………….68TH RESPONDENT JANE FLORA NYOMBI ……………………………………….69TH RESPONDENT ESTHER EZRA MMARY ………………………………………70TH RESPONDENT BETTY MACHARI ……………………………………………..71ST RESPONDENT FLORA JOHN MSANGI ………………………………………72ND RESPONDENT CELLINE ELIAS LYIMO ……………………………………..73RD RESPONDENT MICHAEL JOHN MLAY ………………………………………74TH RESPONDENT PETER DAVID MAGANGA …………………………………..75TH RESPONDENT REV. GOODLUCK SALIM MASAWE ……………………….76TH RESPONDENT DEOGRATIUS DAMIAN MUGISHAGWE …………………77TH RESPONDENT PAUL MICHAEL ……………………………………………….78TH RESPONDENT VERDIANA LAURENCE ………………………….…………..79TH RESPONDENT AMEN JEFFREY SAWAYAEL ………………………………..80TH RESPONDENT MARIETH JOHN KIHUMA …………………………………..81ST RESPONDENT ALLY SHABANI KASHINDO ………………………………..82ND RESPONDENT

RULING 11th December, 2023 A.P.KILIMI, J.: The applicant hereinabove through the chamber summons supported by his advocate’s affidavit has moved this court under Section 14 (1) of the Law of Limitation Act Cap 89 R.E 2019 and any other enabling provisions of the Law; praying for the following orders namely: - 1. That, the court be pleased to extend time within which the applicant to serve the respondent with letter dated 20th February, 2023 requesting for copies of judgment, decree and proceedings in respect of Land Case No. 06 of 2019 between ELIMSAAD ELIUDI KlTUMA & 81 OTHERS VERSUS THE REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI. 3 2. An order that the costs of and incidental to this application abide the results of the said application.

3. Any other order/relief this Court may deem fit and just to grant. When the application came for hearing, the applicant enjoyed the service of Mr. Wilhard Kitali assisted by Mr. Peter Seni both learned advocates whereas Mr. Joseph Peter appears representing the all respondents Mr. Wilhard Kitali submitting in support of the application prayed to adopt applicant affidavit and averred that, this application for extension of time in order to serve the respondent a letter written on 20/2/2023 and received in this court on 22/2/2023, the said letter for request to be supplied copies of judgment, decree and proceeding in respect to the land case no. 6 of 2019 between Elimsaad Eliud Kituma and 81 others versus Registered Trustees of CCM. The counsel further submits that, the gist of this application comes after the applicant aggrieved by the decision of this court dated 10/02/2023 of a land Case no. 6/2019. The applicant intended to appeal to Court of Appeal, on 23/2/2023 the applicant lodged a notice of appeal showing the intention to appeal to the court of appeal of Tanzania and said notice was 4 duly served to the respondents, also the counsel submitted that the said notice is appended in their affidavit and it was served to the respondent. On 22/2/2023 the applicant wrote a letter to the court requesting to be supplied with the copy of judgment and proceeding, the said letter

was filed and received on 22/2/2023, but unfortunately the applicant failed to serve that letter to the respondent. The said failure came to be known after the current advocate for applicant when got instruction to proceed with this case from the previous advocate revealed the notice was served properly to the respondent but the letter requesting judgment and proceeding was not served to the respondents, instead was filed only to this court. This is after the said former advocate was appointed to by the President to be District Executive Officer, and thus when he came to handle case file the said defect was revealed. Mr. Kitali further submitted that, after the applicant discovered the said defect, the applicant diligently and reasonably acted promptly to seek the remedy of it, by filing extension of time to serve the respondents with the letter said above. To buttress his assertion the counsel referred the case of Michael Lessani Kweka vs. John Eliafye 1997 TLR 152. Also, Mr. Kitali added that if the they will be allowed to serve the opposite party with the 5 said letter, that act will not prejudiced the respondent in anyhow but rather will help enhance of justice for both parties. To fortify his view, he has cited the case of Hassan Kibasa vs. Anelisia Chang'a Civil Application no 318/13 of 2021 CAT at Iringa (unreported) where the court observed that the act of applicant to

act promptly after discovering defect was a ground for extension of time. Mr. Kitali also went on to submit that, the negligence of previous counsel for the applicant should not be used to penalise the applicant, as per the case of Abdalah Juma Kambale vs. Noradi Tiliko Mongelwa Civil Appeal no. 231 of 2018 CAT at Tabora, at page 12 the court observed that inaction or negligence of the previous advocate cannot be used to penalise the applicant. He therefore insisted even in this case the negligence should not be used to punish the applicant. He thus prayed the application be granted. In responding to the above Mr. Joseph Peter in one sentence conceded the application but prayed to be awarded costs. In rejoinder, Mr. Kitali prayed this court to refer the case of Abdalla Juma Kumbare (supra) where the court sated the issue of in action or 6 negligence of that advocate not to be used to penalize the applicant, thus prayed in this matter the same be applied, since the grant by cost will be penalizing to Applicant, therefore prayed each party to shoulder his costs. I have considered the intensive submission by the applicant’s counsel and the reply by the respondent’s counsel who indeed did not object the application. I inclined with the argument by Mr. Kitali that inaction or negligence of that advocate not to be used to penalize his client, but in my view under the circumstances of this matter it extends to the granting of the application and not cost of this application. However, in considering the doors are already opened for applicant to enter the court of appeal arena. This application is granted as prayed and cost of this matter should be in the cause. It is so ordered. DATED at MOSHI this 11th day of December, 2023.

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JUDGE Signed by: A. P. KILIMI 7 Court: - Ruling delivered today on 11th day of December, 2023 in the presence of Mr. Wilhard Kitali assisted by Peter Seni both learned advocate for applicant, also in the presence of Mr. Joseph Peter advocate for all Respondents. Sgd: A. P. KILIMI

JUDGE 11/12/2023 8