a6 MX M464N 20240716 163828

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB- REGISTRY

AT MBEYA MISC. CIVIL APPLICATION NO. 000026046 OF 2023 (Arising from the District Court of Kyeia at Kyeia in Civil Appeal No. 10 of2009 Originated in the Lusungo Primary Court in Civil Case No. 3 of2009.) ZABRON MWAMBANDE.............................................................. APPLICANT

VERSUS CHRISTINA MBANDE................................................................ RESPONDENT

RULING Date of Last Order: 25/04/2024 Date of Puling: 10/07/2024 NDUNGURU, J. After a lapse of fourteen years of the decision rendered by the District Court of Kyeia at Kyeia in Civil Appeal No. 10 of 2009, originated in the Lusungo Primary Court, Zabron Mwambande has preferred this application made under rule 3 of the Civil Procedure (Appeal in Proceedings Originating in Primary Court) Rules GN. No. 312 of 1964 praying that: i a) This court be pleased to extend time for the Applicant to appeal against the order of Hon. P.Y Maumba DRM of the District Court of Kyela in Civil Appeal No. 10 of 2009 which was issued on 08/02/2010 against the applicant. b) Any other relief deemed necessary. The application was supported by an affidavit sworn by the applicant himself. Having been served with the application, the respondent, Christina Mbande resisted the application through a counter affidavit sworn by herself. Before venturing into the merits of the application, I find it imperative to narrate the background of the matter albeit briefly. It goes that; the applicant and respondent are brother and sister of the same father but different mothers. All parents are deceased. In 2009, the respondent instituted in the Primary Court of Kyela District at Lusungo (the trial court) civil claims baptized as probate No. 3 of 2009 (shauri la Mirathi Na. 3 la 2009) against the applicant that she be

given her share as a legal heir of her deceased mother and father. She also complained to the Primary Court that the applicant has chased her away from their home after the death of their parents. The applicant was ordered to 2 divide a shamba (farm) which was cultivated by the respondent's mother to the respondent on the reason that she has right to inherit his father's estates. It appears the respondent was dissatisfied with the Primary Court's order of to be given the land which was used by her mother. She appealed to the district court on the fact that the applicant's mother had no land, and that the Primary Court did not say anything on her right to live in their parents' stead. Having heard the appeal, the District Court allowed the appeal of the respondent. It ordered the respondent to own a house of her late mother and a farm which her mother was cultivating during her life time. It was ordered further that a land which belonged to the parties' farther be equally divided to them. It also awarded costs. It appears, on the record that on 28/06/2010 a report showing how execution of the District Court's decree was effected. Where the applicant paid costs and apportioned farms according to the order of the District Court. It seems, therefrom, parties went home and rested. On 23rd November, 2023, Zabron Mwambande who was the respondent in both lower courts filled the instant

application praying for the orders as above hinted. 3 The applicant states in his affidavit that, the District Court divided the estate of the respondents deceased mother together with the a shamba which she (respondent's mother) did not own but was owned by their late farther. That the order was made without any appointed legal representative of the deceased father's estates. And that the court carried out the task of dividing the estates while was not its duty but of an administrator. That the judgment of the District Court was pronounced in the absence of the applicant who was told orally that the date for delivery would be on notice. That he kept waiting until October, 2023, when he was summoned to appear before Hon. Njau, RM. only to be told that there was a decision delivered on 8/2/2010. That there is illegality in the intended impugned decision where he invited this Court to decide the issues of; Whether the court has power to order for the division of the estate of the deceased in the absence of the appointed administrator. And whether a judgment of above twelve years can be executed after expiration of that time. The respondent resisted the application by filing a counter affidavit in which she denied the applicants averments. She stated that the District Court was proper in its decision since the respondent was 4 entitled to what she was apportioned. Also, that the

applicant did not account for the inordinate delay in filling appeals. At the hearing of the application, the applicant was Mr. Ezekiel Mwampaka learned advocate while the respondent had serviced by advocate Simon Mwakolo. It was disposed of by way of written submission. Submitting in support of the application, Mr. Mwampaka contended that the applicant was not aware of the impugned decision until 2023, when he was told that there was decision which ordered equal division of the estates of their late father. Thus, that the delay was caused by being unaware of the decision. Mr. Mwampaka also contended that he is aware of the law that granting extension of time is discretion of court upon convinced by the reasons placed before it by the applicant. He relied on the decision of Mwita Mhere vs. Republic, [2005] TLR 107. Also that no hard and faster rule on deciding what constitutes good reason as stated in the case of Joel Silumba v. Repulic, Criminal Application No. 5 of 2012, but the reasons such as; the length of the delay, the reason for delay caused or contributed by dilatory conduct of the applicant, whether there is an arguable case such as a point of law or illegality of the decision sought to be challenged and the degree of 5 prejudice to the opposite party if the application is granted. That in the instant case the court had no jurisdiction where it heard the

probate without ascertaining the mode of life of the deceased, relied on section 18 and the fifth schedule paragraph 1 and 2 of the Magistrate Court Act Cap. 11 R.E 2019 and that the court has power to appoint an administrator and not to divide the estate of the deceased person, he went on arguing that neither one between the parties was appointed an administrator of the deceased estates. Thus, that extension of time will enable the applicant to file appeal in this Court for it to be moved to rectify the anomaly. Mr. Mwampaka further contended that the illegalities made by the two lower courts are on the face of the record. He based his contention on the case of John Paul Yusuph v. Republic Criminal Appeal No. C587 of 2017 CAT at Mwanza that, the Court extended the time after lapse of fifteen years on the ground that illegality in the impugned decision can by itself constitute a sufficient ground for extension of time. According to Mr. Mwampaka, if this Court will leave the judgements of the two lower courts intact, it will mean that it is the position of the law for a court to distribute the deceased estates without first appointing an 6 administrator of the estates. He thus, prayed for the application to be granted. In reply, opposing the application, Mr. Mwakolo submitted that thirteen years is an inordinate delay. And that even if the application will be granted will serve

no purpose since time for execution has been lapsed and things have been taken by events. Also that the applicant has not accounted for each day of delay and the contention that he did not know existence of the decision of the District Court is of no proof but was the inaction of the applicant. Also, that the applicant was summoned in 2023 for execution of the decree has no documentary proof so it should be disregarded. Mr. Mwakolo, however, conceded to the reasons which may be used to grant extension of time as set in the case of Joel Shilumba (supra). He also noted the principle of law that illegality forms good reason for extension of time. But he argued that in this matter there is no any illegality worthy for granting the application. He argued further that whether or not the Primary Court considered the case as probate matter needs evidence. He concluded, that no illegality has been indicated to be on the face of the record. He prayed for the application to dismissed. 7 In rejoinder submission, Mr. Mwampaka contended that the respondent did not refute the account that the District Court said the judgment delivery date was to be on notice. He added insisting that there is illegality on the impugned decision. According to Mr. Mwampaka it is not mandatory nor a law that in whenever extension of time is applied should a party account for each day of the delay. He once

again prayed for grant of the application. I have considered the application at hand, the supporting affidavit and the counter thereto, the rival submissions by counsel for the parties and the law. I need not restate on the principles of granting extension of time as the parties' counsel had given the correct position, that granting extension of time is courts discretion exercised judiciously upon an applicant adducing sufficient reasons. See Benedict Mumello vs Bank of Tanzania, Civil Application No. 12 of 2012 CAT (unreported), Lyamuya Construction Company Limited v. Board of Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), Tanga Cement Company Limited v. Jumanne D. Massanga and Another, Civil Application No. 6 of 2001 (unreported) to cite but few. 8 This Court is thus, bound to consider the issue whether the applicant has managed to adduce sufficient reasons for this Court to grant the application. The reasons adduced in the matter at hand are of two-fold. That the applicant had waited for a notice of judgment from 2009 as it was ordered by the District Court to so given until 2023 despite his tireless follow up. And that there is illegality on the face of the record for the District Court divided the deceased estates while it no such jurisdiction and that there was no administrator of the estates appointed by the

two lower courts. As regard to the first reason, I do not intend to bit around the bush. The account is not founded on the affidavital proof. The applicant attached only a copy of judgment to his affidavit in which the judgment itself does not show the preceded order. It was upon the applicant to attach a copy of the District Court proceedings to enable this court to see if it is true that the District Court ordered the judgment to be on notice. To be sincerely, the lower courts record were called after a calling for records. I had time to go though it. It appears the District Court ordered for judgment on 1/2/2010 to be delivered 8/2/2010. The order was made in the absence of the applicant. And it was on 8/2/2010 9 actually delivered and was indicated that the applicant was absent without reasons of absence known. That fact, however, does not mean that the District Court ordered for the notice to be delivered on notice. Even if I would assume without deciding that, the District Court ordered for judgment on notice, I would have not attracted to grant the application for it is not appealing in normal logic that the applicant waited for delivery of a judgment for about 13 years. The applicant wanted this court believe that the said shamba that was not apportioned to the respondent had never been used for that long time, and if had been used did the applicant ask himself or make

a follow up on how she got the same. Adding to the above reasoning, it has been stated by the respondent in her counter affidavit that the decree of the District Court had been executed thus, that the matter taken by event. This account also makes me to believe further that the applicant had knowledge about the presence of the intended impugned judgment. I thus reject the first reason. As to the reason of illegality, it is the applicant account and argument by Mr. Mwampaka that the District Court divided the estates without jurisdiction and that no administrator was appointed by the two 10 lower courts. Indeed, as correctly argued by the counsel for the parties, illegality in a decision can in itself be a reason for granting extension of time. See Lyamuya Construction Company Limited (supra). And that the alleged illegality should be on the face of the record; see The Principal Secretary of National Defence Force vs. Vallambia [1991] TLR 387. Deriving from the above law, in matter at hand the complained illegalities are not on the face of the record they are rather couched as matter of facts which need long processes. I say so because while the applicant and his counsel claim that the case before the Primary Court was Probate cause, it is maintained that it was not. And I, having passed through the record I found that it needs long discussion to resolve that the matter at the

Primary and District Court was probate and administration cause. If a long process is applied to discover certain illegality then the same will not be in the ambit of being referred to as the illegality of the face of the record. Additionally, the claimed illegalities set in the applicant's affidavit were crafted in the way that this court is dealing with an appeal instead of application for extension of time. 11 That being said and done, I find the applicant's application lacking in merits. I thus dismiss it with costs. Ordered accordingly. D.B. NDUNGURU,

JUDGE 10/07/2024 12