Gutimo Perry Kuchilingulo vs Nicolas Selestine Mtei & Another (Civil Application No. 368/17 of 2024) [2026] TZCA 134 (25 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA CCQRAM: L IU , J.A., MAIGE. J.A. And MANSOOR. J.A.^ CIVIL APPLICATION NO. 368/17 OF 2024 GUTIMO PERRY KUCHILINGULO..................................................APPLICANT VERSUS NICOLAS SELESTINE MTEI...................................................1 . st RESPONDENT AGAPITH MARK AZIZI t/a TREES PHARMACY ...................... 2 nd RESPONDENT (Revision of Execution Proceedings and Orders of the High Court of Tanzania (Land Division) at Dar es Salaam) (Kisonqo. DR.) dated the 12th day of July, 2023 in Execution No. 53 of 2022 RULING OF THE COURT ISP & 29h February, 2026 MANSOOR. J.A.: The Applicant, Gutimo Perry Kuchilingulo, applied for revision of the execution proceedings and the resultant orders of the High Court, Land Division, in Execution No. 53 of 2022. The application is premised under the provisions of Rule 65 (1) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules), seeking to quash the proceedings, rulings and orders in Execution No. 53 of 2022, which culminated in the sale by Public Auction of the Landed Property described as Plot No. 242, Block 41 comprised in a i

Certificate of Title No. 146336, Kinondoni Municipality, Dar es Salaam "the property" Briefly, the facts leading to the present application are as stated in the affidavit of the applicant, that, the applicant is the administrator of the estate of the Late Zena Humudi Salum who died intestate on 14th January 2022. He was appointed vide Probate and Administration Cause No. 1514 of 2023 at Temeke One Stop Judicial Centre, Dar es Salaam on 1st November 2023. The Late Zena Humudi Salum is the judgement debtor in Land Case No. 74 of 2020, where the judgement and decree was entered in favour of Nicolas Selestine Mtei "the 1st respondent" on 21st April 2021. In the Decree, she was ordered to hand over the suit property, namely, Plot No. 242 Block 41, with Certificate of Title No. 146336, Kinondoni Area for construction of the building, she was injuncted from interfering with the 1st respondent peaceful occupation of the property, and in the alternative, she was ordered to refund to the 1st respondent TZS 69,850,000 with interests at court's rates, and compensation of TZS 109,000,000 with interests at commercial rates. She was also condemned for costs. On 20thJune 2022, the 1st respondent filed an application for execution No. 53 of 2022 demanding payments of TZS 178,850,000/= against Zena Humudi Salum or her representative Asha Ally Mohamed, and the mode of

execution was the attachment and sell of the property registered in the name of Zena Humudi Salum. On 24th June 2022, the Deputy Registrar of the High Court, Land Division, issued a notice to show cause to Zena Humudi Salum to appear before the executing court on 19th July 2022 to show cause why the decree should not be executed. The notice appeared to have been received by one Asha Ally, the representative of Zena Humudi Salum as she acknowledged to have received it on 15th July 2022. On 12th July 2023, the Deputy Registrar of the High Court, Land Division Hon. C.M. Kisongo gave a ruling in which it is shown that the application for execution was duly served to Zena Humudi Salum who entered appearance via her counsel one Mr. Kusarika, learned advocate on 19th July 2023. On this date, Mr. Kusarika informed the court that, Zena Humudi Salum is dead and promised to furnish to the court the death certificate as well as the letter for appointment of administration of the estate of the Late Zena Humudi Salum, he never did. Having failed to furnish the proof of death, the Deputy Registrar ordered the execution to proceed in the manner that it was applied for, thus ordered the attachment and sale of the property to proceed. A proclamation for sale of the property was issued, and sale of the property already attached was ordered to be conducted by public auction on 15/5/2024 at about 11.00 hrs. The property

was eventually sold by public auction and the successful purchaser in auction was the 2n d respondent, Agapith Mark Aziz Kaole. Now, the applicant brought the application for revision of the aforesaid proceedings, rulings and orders claiming that, since his appointment on 1s t November 2023 as the administrator of the estate of the Late Zena Humudi Salum, he has never been served with any court summons, documents or notice relating to Execution No. 53 of 2022 between the 1st respondent and the Late Zena Humudi Salum, he states at para 13.0 of his affidavit: 13.0. "That, since my appointment, I have never been served with any Court Summons, documents or Notice relating to Execution No. 53 of 2022 between the 1st Respondent and the Late Zena Humudi." The applicant asserts that, he became aware of the execution proceedings on Monday 20th May, 2024, and promptly swore the affidavit in support of the application and filed the application in court on 29th May 2024. He claims that all the execution proceedings took place while Zena Humudi Salum was already dead, before he was appointed the administrator. That, even after he was appointed, the proceedings that took place thereafter were done without notice to him.

The 1st respondent opposed the application by filing the affidavit in reply, he also filed the notice of preliminary objections under rule 107 (1) of the Rules. He brought two objections, one, the application is time barred having been lodged beyond 60 days contrary to rule 65 (4) of the Rules, and two, the application is bad in law for failure to attach the certificate of delay. At the hearing, the applicant was represented by Mr. Peter Kibatala, learned advocate while the 1st respondent had the services of Mr. Jovin M. Ndungi, learned advocate. The counsel for the 1s t respondent has insisted that, the applicant brought this application beyond the time stipulated by statute. The applicant's counsel on the other hand has skirted around this issue because he does not state when the proceedings, rulings and orders of the executing court were issued. As stated in the facts summarized above, the execution proceedings started way back on 20th June 2022 when the 1st respondent filed the application for execution, and completed in May 2024 when the property was finally sold to the 2n d respondent at a public auction. The applicant made a belated attempt in his affidavit stating that, he became aware of the execution proceedings on 20th May 2024 and filed the present application on 29th May 2024, thus he is within time as he claims that, the

time started to accrue on 20th May 2024, when he became aware of the execution proceedings. We have heard the counsel's respective submissions in support of the preliminary objections and in opposing it, and have also considered the decision in the case referred by Mr. Kibatala, the case of Salim Lakhan & Others vs Ishfaque Shabir Yusufali (Civil Application 455 of 2019) [2020] TZCA 211 (11 May 2020), in which at page 13, we held that: "Essentially, s. 5 of the Limitation Act prescribes that the period oflimitation in relation to anyproceedings shall commence from the date on which the right of action for such proceeding accrues. The law is further settled that; the right of action begins to run when one becomes aware of the said transaction or act which is complained of". Basically, the accrual of time for filing a revision is 60 days from the date of the decision or proceedings sought to be revised, thus an application for revision must be filed within 60 days of the ruling or decision. This is provided for under Rule 65(4) of the Rules. This Rule provides: "65(4) Where the revision is initiated by a party, the party seeking the revision shall lodge the application within sixty days (60) from the date of the decision sought to be revised." 6

Under rule 65 (4), time for filing revisional proceedings before the Court begins to run from the date the decision or order is pronounced, not from when the party becomes aware of the proceedings, or order or ruling he sought to challenge by revision. In the present application, the applicant is seeking to revise the proceedings and orders which started on 20th June 2022 and ended on 5th April 2024. We are at once with the submissions made by Mr. Ndungi that, this court lacks the jurisdiction to revise the process leading to issuance of the orders of attachment and sale of the property because the proceedings started since 20th June 2022, and the application which was filed on 29th May 2024 is way out of time. Going by the affidavit of the applicant and its supporting documents, this application for revision was filed outside the time given under Rule 65 (4) of the Rules. The applicant has attempted to seek refuge under the holding in the case of Salim Lakhan (supra), however, we are not persuaded because the cited decision is on the applicability of the Law of Limitation Act which is not applicable in the proceedings before the Court. Again, rule 65 (4) did not give any leeway or exceptions and it needs to be strictly observed. A party who initiates revisional proceedings before the Court must do so within sixty days from the date the decision he wants to be revised is pronounced. The latter route is provided by statute and where the specific proceedings

or order or ruling sought to be challenged is outside the period stipulated by the statute, this court lacks jurisdiction to entertain it. This is so because limitation of time is not just a technical technicality. We said this in Computer Logix Limited & Another vs Zamzam Shadadi Issa & Another (Civil Application 538 of 2018) [2022] TZCA 485 (01 August 2022, when we reiterated our stand in Amos Fulgence Karungula vs Kagera Co-operative Union (1990) Ltd. (Civil Application No. 435/04 of 2017) [2017] TZCA 144 (6 December 2017), in which we stated: "It is not in dispute that the present revision was initiated by the applicant and as such Rule 65 (4) imposes a mandatory requirement to the effect that an application for revision must be lodged not later than sixty (60) days from the date of the decision sought to be revised. This has been emphasised by the Court in numerous decisions including the case of GERALD KASAMYASIBULA VSREPUBLIC, Criminal Application No. 5 of2010 (unreported). Failure to file the revision application initiated by a party within the prescribed sixty (60) days as stipulated under Rule 65 (4) of the Rules, is a fundamental irregularity which renders the revision application incompetent. (See NJAM BA S/O KUUMIWA VS REPUBLIC, Criminal Application No. 4 of 2010 (unreported)." 8

Consequently, the application for revision filed on 29 May 2024 for execution proceedings which started way back on 20th June 2022 and completed on 15th May 2024, is well out of the prescribed time. On account of the application being barred by limitation, we uphold the 1st preliminary objection and accordingly strike out the application with costs. DATED at SHINYANGA this 24th day of February, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 25th day of February, 2026 in the presence of Mr. Peter Kibatala, learned counsel for the Applicant, Mr. Jovin Ndungi, learned counsel for the Respondent by virtual Court, and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original.