IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(LAND DIVISION)

AT DAR ES SALAAM

MISC. LAND APPLICATION NO. 333 OF 2019

(Arising from the Judgment in Misc. Land Case Appeal No. 138 o f2008 in the High
Court of Tanzania)

JOHN KIONDO.............................................................APPLICANT
VERSUS

SARAI MBWAN A....................................................... RESPONDENT

RULING

I. MAIGE, 3:

The applicant has lodged this application under sections 11(1) of the

Appellate Jurisdiction Act Cap 141 and 47(2) of the Land Dispute Court Act,

Cap 216 R.E 2019. He is seeking for an extension of time within which to

lodge a notice of intention to appeal and leave to appeal to the Court of

Appeal against the decision of this court as per Hon. Mziray J, (as he then

was) in Miscellaneous Land Appeal No 138 of 2008. The applicant has

deposed an affidavit to substantiate the application. It has been rebutted

by a counter affidavit by the respondent.

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In the conduct of this matter, the applicant appeared in person and was

not represented. On her part, the respondent enjoyed the service of Mr.

Augustine Kusalika, learned advocate. The merit or otherwise of the

application was debated by way of written submissions which have been

presented in due adherence with my direction.

I have considered the rival submissions in line with the affidavit and

counter affidavit. I think it is appropriate to consider whether or not

sufficient cause for the delay to pursue the intended actions timely has

been established. That is a condition precedent for grant of such an

application and parties are not at issue there about.

The decision, the subject of the intended appeal was delivered on 9th

March 2010. The current application was initiated on 13th June 2019. It is

after a lapse of more than nine years. The delay is apparently inordinate.

The applicant's main ground for the delay is prosecution of various

proceedings both in this court and the Court of Appeal. After the decision

under discussion, it would appear, the applicant timely lodged a notice of

appeal and an application for leave to appeal. The application was, on 20th

July 2011, struck on technical ground. His attempt to obtain leave to the
Court of appeal as a second bite proved futile too. It was struck out for

being time barred. Upon filing a fresh application at this Court, leave was

at last granted on 16th July 2014. Therefore, the applicant filed civil appeal

number 106 of 2014. Again, the said appeal was struck out, on 16th

February 2018 for being time barred. The applicant was still vigorous to

fight for his right. He lodged Miscellaneous Land Application No. 224 of

2018, at this Court which was struck out on 7th December, 2018 for being

preferred under a wrong provision of law.

The prosecution of the above proceedings is well documented and it has

never been doubted in the counter affidavit and written submissions for the

respondent. The issue is whether the said prosecutions amount to

sufficient cause and whether the applicant has'accounted for every day of

delay? While the applicant has asked me to answer the questions

affirmatively, Mr. Kusalika has asked me to answer the same negatively. I

will decide here below who is right and who is wrong.

In accordance with the irrefutable facts in the affidavit, the last order in the

said proceedings, was delivered on 7th day of December 2018. The instant

application has been filed on 13th June 2019. There is an interval of more

than six months. The applicant claims in paragraph 8 of the affidavit that,
since the pronouncement of the said ruling, he contracted prolonged

decease. He does not disclose the nature of the decease. He has not

attached any medical chits to justify the same too despite the assertion

being vigorously contested in the counter affidavit. I have also considered

the fact that both the application for leave to appeal lodged at the Court of

Appeal as the second bite and the initial appeal to the Court of Appeal

were struck out for being time barred. The applicant, having lost the

application for leave on account of time limitation, he would have not been

expected, but for negligence, to repeat the same mistake in the initial

appeal on the same ground. In my opinion therefore, the applicant has

not been able to account for every day of delay. Besides, he has not been

able to establish that, the prosecution of the various proceedings under

discussion was without negligence.

The applicant has attempted to justify the delay on account of illegalities.

What the applicant considers to be elements of illegalities are pinpointed in

paragraph 9 of the affidavit. I have read the deposition in the respective

paragraph. I do not agree with the applicant that, the facts therein

deposed amount to illegality for the purpose of the rule in Valamabia

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case. They if established, would amount to mere errors of law and facts

which do not affect the legality of the judgment under discussion.

In the final result and for the foregoing reasons, the application is without

merit and it is accordingly dismissed with costs.

Dated at Dar es Salaam on 26 day of February 2021.

^LMAIGE,
JUDGE,
26/2/2021