vitus kilapi vs batista kilapi 2024 tzhc 379 22 february 2024

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA MISC. LAND APPLICATION 26375 OF 2023 (Arising from the decision of Hon. Mwenempazi,!, in Land Appeal No. 2 of2021 High Court of Tanzania at Sumbawanga and originated from the Land Application No. 10 of 2018 in the District Land and Housing Tribunal for Rukwa at Sumbawanga) VITUS KILAPI...............................................................................APPLICANT

VERSUS BATISTA KILAPI....................................................................... RESPONDENT

RULING lSfh December, 2023 & 22nd February, 2024 MRISHA, J. X JL । This is a brief Ruling following the application of the applicant, Vitus Kilapi who has urged the court to grant him leave to appeal to the Court of Appeal against the decision of Hon. Mwenempazi, J. in respect of the Land Appeal No. 2 of 2021 which was delivered on 19.10.2023 in favour of the respondent one Batista Kilapi. The same has been brought by way of chamber summons under section 47 (2) of the Land Disputes Courts Act, Cap 216 R.E 2019 (the LDCA), i section 5 (1) (c) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (the AJA) and Rule 45 (a) of the Court of Appeal Rules, 2009 henceforth the Court of Appeal Rules, as the enabling provisions. It is also supported by the affidavit duly sworn by the applicant himself. Through such affidavit, the applicant has averred, among other things, that he is aggrieved by the decision of the court and wishes to appeal to the Court of Appeal against the same, according to him that cannot be done unless he obtains the leave of this court which is why he has come up with the instant application. It is also his averment that the proceedings, judgment and decision of the court and those of the trial tribunal reveal some important disturbing features which according to him, requires the intervention of the Apex Court. These can be seen at paragraphs 9 and 10 of the

applicant's affidavit. On her side, the respondent through her counter affidavit has strongly disputed her counterpart's averments stating that the leave to appeal to the Court of Appeal is not automatic and the applicant has not raised any prima facie arguable issues. I am aware that following the filing of the necessary documents by the parties herein, this application ought to have undergone the normal 2 procedure of hearing it on merit. However, due to the reasons which will be displayed shortly, I will not let it go that way, rather I will take a different approach in dealing with the present application for the purpose of serving the time of the court and the parties as well. Over the past years, it has been the law in our jurisdiction that any person who is aggrieved by the decision of the High Court in the exercise of its revisional or appellate jurisdiction may, with the leave of the High Court or Court of Appeal, appeal to the Court of Appeal. This is provided under section 47 (2) of the LDCA and section 5 (l)(c) of the AJA. It has also been the requirement of the law that any aggrieved party who intends to take that course, must do so within fourteen (14) days from the date of the decision sought to be challenged by way of appeal. This is provided under Rule 45 (a) of the Court of Appeal Rules. My careful perusal on the chamber summons tabled, reveals that

the applicant did exactly what the enabling provisions of the law contained in that chamber summons requires him to do. However, I wish to point out at this juncture that obtaining leave of the High Court to appeal to the Court of Appeal against the decision made by the High Court while 3 exercising its revisional or appellate jurisdiction over land matters, is currently not a requisite requirement. The above court position is fortified by the current amendment of the provisions of section 5 of the AJA by section 10 of the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023 which came into effect on the 1st day of December, 2023 which provides that, "10. The principal Act is amended in section 5- (a) by deleting subsection (1) and substituting for it the following: "(1) In civil proceedings, except where any other written law provides otherwise, an appeal shall He to the Court of Appeal against every order or decree, including an ex-parte or preliminary decree made by the High Court, in the exercise of its original, appellate or revisional jurisdiction." From the above provisions of the law, it is quite clear that the obtaining leave to appeal to the Court of Appeal against every order or decree including an exparte or preliminary decree made by the High Court, in the exercise of its original, appellate or revisional jurisdiction, is no longer existing as it has

been overtaken by the operation of the new amendment, as shown above. 4 In the circumstances and given the fact that procedural laws are retrospective, unless the legislature expressly says they are not, which is not expressly provided under section 10 of the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023, it is my settled view that the present application is untenable due to the reasons I have assigned hereinabove. As for the way forward, it is my considered opinion that the remedy here is to struck out the present application for being affected by the operation of the law. Hence, I hereby struck out the present application with no order as to costs. Any aggrieved party is at liberty to proceed to the Court of Appeal, if he/she so wishes. It is so ordered.

JUDGE 22.02.2024 DATED at SUMBAWANGA this 22nd day of February, 2024.

JUDGE 22.02.2024 5