stephano hussein 202 others vs the registered trustee of islamic development foundation 2021 tzhclandd 720 19 february 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 147 OF 2019 (From the decision of the District and Housing Tribunal for Ilala in Land Application No. 22 of 2017) STEPHANO HUSSEN AND 202 OTHERS APPLICANTS

VERSUS

THE REGISTERED TRUSTEES OF ISLAMIC DEVELOPMENT FOUNDATION .,„....^1...RESP0NDENTS

RULING Date oflast Order:^^^ ^/iO/2020 Date ofRuling: 19/02/2021 MANGO,J. Through a chamber summons made under section 41(2) of the Land Disputes Courts Act supported by an affidavit sworn by Elinas Emmanuel Kitua, the applicants seeks the for the following orders; i. Extension of time to appeal against the decision of the District Land and Housing Tribunal for Kibaha in Land Application 37 of 2016; li. Costs of the Application; and iii. Any other order that this court may deem just and fit to grant. 1 The application is contested by the respondent. Both parties have legal representation. The applicants were represented by Mr. Elinas Emmanuel Kitua, learned advocate while the respondent enjoyed legal services of Mr. Adnan Abdallah Chitale, learned advocate. The application was argued by way of written submissions. According to the affidavit filed in support of this application and the applicants submission the reason that caused their delay to file the appeal is that their previous appeal was struck out. The applicants counsel submitted that the applicants were party to Application No. 37 of 2016 before District Land and Housing Tribunal for Kibaha and they were among the appellants in Land Appeal No. 156 of 2018 before this Court. On 20^^ March 2019 the Appeal was struck out for being incompetent and other appellants withdrew their interest to pursue the appeal. As time to

file the appeal had already lapsed, the applicants had to file this application in order to be granted leave to file their appeal out of time. In his reply submission the respondents counsel adopted the contents of the counter affidavit filed by the respondent and argued that the applicants were not among the appellants in Land Appeal No. 156 of 2018. According to him Land Appeal No. 156 of 2018 was preferred by Bundara Selemani and 218 others whose names were not mentioned. The applicants are knocking the doors of this court for the first time. Citing the case of Juma Marumbo and 42 others Versus Regional Commissioner Dar es salaam Region and 2 others Civil Appeal No. 242 of 2016 Court of Appeal of Tanzania at Dar es salaam and the case Zanzibar Bottlers Limited Versus Rahma Ally Saad and 55 others Civil Application No. 459/15 of 2016 Court of Appeal of Tanzania at Dar es Salaam, he argued that, failure to mention names of parties to the case makes those undisclosed names uncertain. Therefore, as the names of the applicants were not mentioned as appellants in Land Appeal No.156 of 2018, they cannot be considered as part to the appeal. Unfortunately the said Bundala SelemanI Is not party to the current application. In such circumstances the applicants cannot rely on the struck out of the appeal which they were not party to, as a reason for their delay to file their intended

appeal In his rejoinder, the applicant's counsel reiterated his argument in chief that the applicants were party to land Appeal No. 156 of 2018, their names were mistakenly not disclosed. It is trite law that for extension of time to be granted, the applicant has to advance a sufficient reason for his delay. From the submission by both parties It Is not disputed that Appeal No. 156 of 2018 was filed before this court against the decision of the trial tribunal. The said appeal was filed on time. Court record establish that Appeal No. 156 of 2018 was struck out by this court because the appellants were not known, thus the appeal was incompetent before this court. In such circumstances it is not possible to determine whether the applicants were among the appellants in Land Appeal No. 156 of 2018 and will be unjustifiable to presume that they were not party to the said appeal while the names of the 218 others were not specifically mentioned. I am of the view that prosecuting of an incompetent appeal as It happened to the applicants In this application can be considered as a sufficient cause to move this court to grant extension of time because there Is no proof that the applicants acted negligently in filing the said appeal. There Is no dispute that the said appeal was filed within time thus, it cannot be considered to be filed in order to interfere with the execution process or as

an afterthought. For that reason I find it justifiable to grant the application. I am alert that the respondent has raised a number of concerns regarding the intended appeal. However, I will not determine the same in this application because that will amount to determining the merits of the intended appeal prematurely. The respondent may raise the same after the appeal has been filed. Application is hereby granted. The applicants should file their appeal within 14 days from the date of extraction of the drawn order from this ruling. Given the circumstances in this Appiication, I award no costs. ^ 0? \s a Z.j|D. MANG ri JUDGE ;qv/ ^^49/02/2021