Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO.23487 OF 2024 (Originating from the High Court of Tanzania, Land Division, in Misc. Land Application No. 584 of 2020) ZUHURA MWADACHI HAMISI (The administratix of the estates of the late RAMADHANI A. MWADACHI)...................... 1st APPLICANT HAWA ABDALLA............................................................. 2nd APPLICANT VERSUS FERDINAND BATUNGI................................................... RESPONDENT RULING Date of last Order: 6/12/2024 Date of Ruling: 10/12/2024 LA LTAl KA, J, This is a ruling on an application for extension of time filed by the applicants under Section 14(1) of the Law of Limitation Act, Cap. 89 R.E. 2019. The applicants seek an extension of time to refile a Bill of Costs that originated from Misc. Land Case Application No. 584 of 2020. The application is supported by a joint affidavit sworn by the applicants, which details the grounds upon which the extension is sought. Page 1 of 9 The application was heard by way of written submissions. The Applicants and the Respondent enjoyed the skilful legal services of Messrs Desidery Ndibalema and Hashim Mziray, learned Advocates, respectively. They deserve commendations for spotless compliance with the ordered scheduled. The next part of this Ruling is a summary of submissions by both parties, my analysis of the law and the verdict. Mr. Mziray, Counsel for the Applicants, explained that the applicants were praying for, among other things, an extension of time to file an application for a Bill of Costs originating from Misc. Land Application No. 584 of 2020. The application, he averred, was supported by a joint affidavit affirmed by the applicants on August 19, 2024. He indicated that the affidavit was adopted to form part of his submission. Counsel briefly outlined the background, stating that the first applicant, Ramadhani A. Mwadachi (now deceased), and the current second applicant had been sued by the respondent in Misc. Land Case Application No. 584 of 2020. He noted that the matter was determined on merits, and the respondent's application for leave to appeal to the Court of Appeal was dismissed with costs, as per the ruling of Madam Judge V.L. Makani dated December 13, 2021. Subsequently, the Page 2 of 9 applicants filed Bills of Costs No. 23 of 2022 on February 2, 2022, as stated in paragraph 5 of the affidavit. However, Counsel asserted, on December 22, 2022, this court struck out the matter upon a preliminary objection raised by the respondent. Mr. Mziray pointed out that paragraphs 7, 8, 9, and 10 of the affidavit demonstrated a series of events that constituted reasonable grounds for an extension of time to refile the application for a Bill of Costs. He summarized the grounds as follows: 1. The previous Bills of Costs had been filed on time but were struck out by the court on December 22, 2022. 2. The illness of the first applicant, followed by his subsequent death, as evidenced by annexure 3 of the affidavit. 3. The time taken by the family to deliberate on the way forward after the first applicant's death. 4. The waiting period for the legal processes of obtaining a death certificate and for the Primary Court to appoint the second applicant as administratrix of the deceased's estate. 5. The time required to organize funds and file the current application. In conclusion, counsel argued that given the nature of the circumstances surrounding the application and in the interest of justice, particularly concerning the deceased Ramadhani A. Mwadachi, the application should be granted as prayed in the chamber summons. Page 3 of 9 Mr. Ndibalemba, Counsel for the Respondent vehemently opposed the application. He submitted that the same was frivolous and vexatious, devoid of merit, and should therefore be dismissed with costs. He explained that the applicants sought an extension of time to file a Bill of Costs under Section 14(1) of the Law of Limitation Act (supra), which requires the applicants to demonstrate good cause for such an extension to be granted. Counsel noted that the applicants had jointly filed Bill of Costs No. 23 of 2022, which was struck out on December 22, 2022, by Hon. Kisongo, Deputy Registrar. He emphasized that from that date until the filing of the present application on September 23, 2024—21 months or 634 days later—the applicants had provided no reasonable explanation or accounted for the delay. Addressing the affidavit supporting the application, Mr. Ndibalemba observed that under paragraph 7, the applicants alleged that the late Ramadhani A. Mwadachi had been ill since the end of 2022 and had attended various hospitals until his death on December 13, 2023. However, Counsel argued, applicants failed to mention the specific hospitals, except Muhimbili Hospital, and provided no evidence of treatment, such as admission or discharge reports. Page 4 of 9 Mr. Ndibalema argued further that mere assertions without medical reports or other evidence were insufficient to prove the claims. Citing Section 110(1) of the Evidence Act Cap 6 R.E. 2022, he underscored that the burden of proof lies on the party asserting the facts, and in this case, the applicants had not discharged that burden. Counsel contended that the second applicant offered no explanation for her inaction during the delay period. He argued that the second applicant, as a joint filer, could have pursued the application in time, making arrangements for the first applicant's signature if needed. This, he maintained, demonstrated gross negligence, which the Court should not condone. Counsel dismissed the significance of the death certificate provided, noting that it merely confirmed the date of death (December 13, 2023) but did not establish the history of the deceased's illness or critical medical care during the delay period. He argued that without evidence of when the deceased fell ill or was incapacitated, the death certificate alone could not justify the delay. Mr. Ndibalema further criticized the applicants' failure to account for delays during key periods, such as the time between the deceased's passing and the family meeting held on March 13, 2024, for appointing the administratrix, and the time between the probate filing and the Page 5 of 9 issuance of an advertisement order by the Temeke Primary Court on July 19, 2024. Counsel pointed out that the administratrix was appointed on August 6, 2024, yet the application was filed only on September 23, 2024—47 days later—with no explanation for the additional delay. Counsel referenced the principle established in Civil Application No. 234 of 2015, Dar es Salaam City Council v. S. Group Security Co. Ltd (unreported), which requires an applicant to account for each day of delay. He asserted that the applicants had failed to meet this requirement and emphasized that delay attributable to negligence, as in this case, could not constitute sufficient cause for an extension of time. Counsel rejected the applicants' other grounds, including the alleged time spent organizing funds and filing the application, as baseless and lacking supporting evidence. Finally, Mr. Ndibalema urged the Court to heed the precedent set in Daphne Parry v. Murray Alexander Carson (1963) EA 546, which cautions courts against making decisions based on sympathy rather than the law. He reiterated that the Court, being a Court of law, should demand that applicants advance sufficient reasons for their delay rather than entertain pleas for mercy. Page 6 of 9 I have dispassionately considered the rival submissions. I have also thoroughly examined the records and the affidavit in support of the application. The issues for my determination are: 1. Whether the applicants have demonstrated sufficient cause to warrant the extension of time. 2. Whether the delay in filing the application has been adequately accounted for. I will proceed to address each of the issues starting with the first one. The law under Section 14(1) of the Law of Limitation Act (Supra) requires the applicant to demonstrate sufficient cause for the delay. Courts have consistently held that sufficient cause must be evaluated on a case-by-case basis, considering the reasons for the delay and whether the applicant acted diligently. In this case, the delay of 634 days is substantial and calls for a meticulous accounting of each day. The applicants primarily attribute the delay to the illness and subsequent death of the late first applicant. However, no medical evidence, such as hospital admission records or treatment progress reports, was provided to substantiate the claims of prolonged illness. Mere assertions unsupported by evidence are insufficient to meet the evidentiary threshold under Section 110 of the Evidence Act. Page 7 of 9 On the second issue, I have noted significant unexplained gaps in the timeline. For instance, the applicants convened a family meeting on March 13, 2024, yet no explanation is given for the period between the deceased's death on December 13, 2023, and this meeting. Similarly, after the second applicant's appointment as administratrix on August 6, 2024, there is no explanation for the delay until the filing of this application on September 23, 2024. This Court further concurs with the respondent's submission that financial constraints and organizational issues do not constitute sufficient cause for the grant of an extension of time. As emphasized in Daphne Parry v. Murray Alexander Carson (1963) EA 546, the Court must decide based on legal principles rather than sympathy. Considering the foregoing, this application is hereby dismissed. I make no orders as to costs. It is so ordered. E.I. LA LTAl KA JUDGE 10/12/2024 Page 8 of 9 Court: Ruling delivered in Court Chambers this 10th day of December 2024 in the presence Mr. Hashim Mziray, learned Advocate, Counsel for the Applicants and the Respondent who has appeared in person, unrepresented. Page 9 of 9