tulahigwa kiliani mkongwa administratrix of the estate of the late matiya sanyongole vs boaz mwakifumbwa 2021 tzhc 9414 7 december 2021

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA DISTRICT REGISTRY OF MBEYA AT MBEYA MISC. LAND APPLICATION NO.83 OF 2020 (Arising from the decision of the High Court in Miso. Land Application No.72 of 2018) TULAHIGWA KILIANI MKONGWA (As the Administratrix of Deceased APPLICANT Estates of Matiya Sanyongole VERSUS BOAZ MWAKIFUMBWA......................................................... RESPONDENT RULING Date of las Order: 20.10.2021 Date of Ruling: 07.12.2021 Ebrahim, J. The instant application has been made under section 95 of the Civil Procedure Code, Cap 33 RE 2019 whereas the Applicant is praying for restoration of Misc. Land Application No.72 of 2018 which Page 1 of 6 was dismissed by this court tor want of prosecution. The application is supported by an affidavit of Tulahigwa Killian Mkongwa. According to the averments of the Applicant in his affidavit explaining the reasons for his absence hence the order of dismissal for want of prosecution by this court on 14.05.2020; she said she attended the court on the day but when the case was called for hearing before a judge, she was in the washroom. To the contrary, the Respondent vehemently dispute the fact that the Applicant attended the court on the said date and contended that the Applicant did not appear before the court on the date scheduled for hearing of the matter. This application was argued by way of written submission. Both parties appeared in person, unrepresented. In her submission in support of the application, the Applicant prayed to adopt the contents of her affidavit and added that she has always been appearing before the court including the date when the matter was dismissed for want of prosecution. In persuading the court to exercise it judicial discretion and have due regard to substantive justice, she referred to the case of Bruno Page 2 of 6 Charles Matalu and Another Vs Ndala Hospital, Labour Application No.20 of 2018 (HC-Tabora). Responding to the submission by the Applicant, the Respondent contended that there is no proof that Applicant was present on the said date nor is there a sworn affidavit from the court clerk named Patrick. The Respondent referred to the cases concerning the exercise of judicial discretion of the court in granting extension of time whilst the matter before the court is for restoration of application. More-so, the Respondent could not tally and explain the principle that he wished the court to consider in not disallowing the application. He finally prayed for the court to dismiss the application with costs. I must state at the outset that the principle enunciated in the cited case of Bruno Charles Matalu (supra) is distinguishable in the circumstances of this case. I am saying so because, the issue of none appearance of a party when the case is called for hearing is not a technicality which can be cured by invocation of the oxygen principle. Page 3 of 6 Indeed, it is the cardinal principle of the law that a party seeking for restoration of matter dismissed by the court for want of prosecution must establish good cause for his/her non-appearance. This position has been well deliberated by the Court of Appeal in the case of Tusekile Duncan V The Republic, Criminal Appeal No.202 of 2009 (unreported) where it was held as follows: “In R V Governer of Winchester Prison exp Roddie [199] AU ER 931 at page 934 which was cited in Aidan Chale V Republic, Criminal Appeal No.130 of 2003 CAT (unreported), good cause was defined as under: “It will usually consist of some good reason why that which is sought should be granted. It need not be something exceptional. To amount to good cause there must be some good reason for what is sought" In seeking for the order of restoration, the Applicant stated at para 6 of the affidavit and urged the court to consider the fact that she had never defaulted in entering appearance before the court since the matter began. She invited the court to visit the records. Verily, Page 4 of 6 going through the records, it is conspicuous that Applicant has been entering appearance before the court since parties were called to appear before the court until 14.05.2020 when the same was dismissed for want of prosecution. I am alive that there is no affidavit from Patrick to prove that he told the Applicant that her case has already been dismissed for want of prosecution on the very date to prove that she was indeed in court. However, I also draw inspiration and persuaded by the decision of this court in the case of Sogea Mwatwizi Vs Steman Mwansile, Miscellaneous Civil Application No. 13 of 2011 (HC-Mbeya - Unreported) which considered the fact that the applicant had never defaulted in entering appearance in court. Thus, after visiting the records, I find that the Applicant had not defaulted into entering appearance before. Thus, in broad sense of Justice, I find that she deserves to be availed another opportunity for her application to be heard on merits. Accordingly, I allow the application and restore Miscellaneous Land Application No.72 of 2018 from where it ended on 14.05.2020. Costs shall follow the main event. Page 5 of 6 Accordingly_o[dered. R.A. Ebrahim JUDGE 07.12.2021 Court: Hg on 13.12.2021 R.A. Ebrahim JUDGE Page 6 of 6 Date: 10.12.2021. Coram: P. D. Ntumo - PRM, Ag-DR. Applicant: All Present For the Applicant: Respondent: B/C: Patrick Nundwe. Court: Ruling delivered in open chambers in the presence of the Parties this 10th day of December 2021. Vu P.D. Ntumo - PRM Ag- Deputy Registrar 10/12/2021