Zumba Wilfred vs Sulpince Joseph Kihili (Misc. Civil Application No. 20564 of 2025) [2025] TZCA 1232 (19 November 2025)

Page 1 of 4 THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI MISC. CIVIL APPLICATION NO. 20564 OF 2025 (Arising from Land Appeal No. 21338 of 2024 in the High Court of United Republic of Tanzania at Moshi) ZUMBA WILFRED …………………........................................ APPLICANT VERSUS SULPINCE JOSEPH KIHILI……………………………….… RESPONDENT EX PARTE RULING 19 th October & 19 th November, 2025 MONGELLA, J. The application at hand has been filed under Order XXXIX Rule 19, Order XLIII Rule 2 and Section 105 of the Civil Procedure Code, Cap 33 R.E 2023 . In the chamber summons, the applicant prays for the following orders: 1. That, the Hon. Court be pleased to restore/re-admit Land Appeal No. 21338 of 2024, which was dismissed on 12 th day of August, 2025. 2. Costs of this application be provided. 3. Any relief (s) this Hon. Court may deem fit and just to grant. The chamber summons was supported by the applicant’s affidavit. Despite being dully served, the respondent did not file his counter affidavit or enter any appearance rendering the application to proceed ex parte . Page 2 of 4 When the application came for the necessary orders, on 08.10.2025, the applicant prayed for the application to be heard by way of written submissions. The prayer was granted and the applicant duly complied with the scheduled order in filing his submission. Submitting in support of the application, the applicant commenced by appreciating that applications of this nature may only be granted in consideration of sufficient cause. He cited the case of Aron Anjero Myavilwa vs Harold Kuaunya (Misc. Civil Application 1 of 2020) [2020] TZHC 1644 (30 July 2020, TANZLII), in support of his stance. He convinced that he had sufficient cause warranting this Court to grant the application. Substantiating his claim that he bears sufficient cause, he contended that the mistake that led the Court to dismiss his appeal for want of prosecution was caused by mistake of his advocate who filed improper submissions. He claimed that he has never slept on his right since the matter was dismissed as he promptly filed the application at hand. Arguing that a party should not be punished by the mistake of his advocate, he referred the case of Kambona Charles vs. Elizabeth Charles (Civil Application No. 529/17 of 2019) [2020] TZCA 214 (12 May 2020, TANZLII); Zuberi Mussa vs. Shinyanga Town Council (Civil Application No. 3 of 2007, unreported) and Nassoro Bakari Nassoro & Another vs Republic (Criminal Application No. 68 of 2020) [2021] TZHC 2129 (17 February 2021). Page 3 of 4 The applicant further considered the reason leading to the dismissal of his case being based on mere technicality and urged the Court not to be engulfed in legal technicalities. He bolstered his argument with the case of Sandrudin Meghji vs. Allied Builiding Contractors Ltd. [ 1998] TLR 250. The appellant advanced another reason for the case to be restored arguing that the Tribunal decision is tainted with serious illegalities apparent on the face of the Tribunal. He expounded that the Tribunal dismissed the suit without proof of death of the respondent. The applicant’s submission has been duly considered. As submitted by him, the application was dismissed for want of prosecution resulting from him filing written submissions highly not related to his grounds of appeal. After introducing the case, the applicant went on submitting on issues of defamation, which were not related to his grounds of appeal. Though the Court used the phrase “dismissal for want of prosecution” in the circumstances of the case, the same cannot be restored as the applicant entered appearance by filing his submission though not substantiating the grounds of appeal. The phrase was used to just equate what he did with failure to prosecute his case, which in my view, cannot warrant the case being be restored even if the advocate filed improper submissions. Further, it is also clear that the alleged advocate was submitting in the relevant case as he well introduced the case and went ahead submitting what she did. Page 4 of 4 The applicant further argued that the case deserves to be restored as there is illegality in the impugned Tribunal order. He cited the case of Principal Secretary, Ministry of Defence & National Service vs. Devram Valambhia [1992] TLR 185 saying that illegality can warrant restoration of a suit. This case however, discussed nothing regarding restoration of suit. It was on extension of time in which illegality of the impugned decision is considered as reasonable cause for extending time. This has nothing to do with restoration of suits where a party presented submissions not supporting his grounds of appeal as in the case at hand. In the premises, the application is dismissed for lack of merit. Considering that the respondent never entered appearance, there shall be no orders for costs. Dated and delivered at Moshi on this 19 th day of November, 2025. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA