Julius Mkama vs Zamda Abilah Njema & Others (Civil Application No. 1248 of 2024) [2025] TZCA 954 (9 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1248 OF 2024 JULIUS MKAMA ©JULIUS BONIFFAS M K A M A ............................. APPLICANT VERSUS ZAMDA ABILAH NJEMA (As Administratrix of the estate of ABDALLAH N JEM A).......................................... . 1 st RESPONDENT FREDDY K W E K A ....................................................................... 2 nd RESPONDENT BAHATI JULIUS MAPUNDA (As Administrator of Emma Charles M apunda).................................................... 3 rd RESPONDENT JAQUELINE HERBERT NYAM UG ULI.......................................4™ RESPONDENT ALI MOHAMED KA JU N IA ................................. . .................. . 5™ RESPONDENT (Application for extension of time to file an application for revision against ruling and order of the High Court of Tanzania, Land Division at Dar es Salaam) (Makuru. J.^ dated the 9th day of November, 2017 in Land Case No. 352 of 2015 RULING 29th August, 4th & 9th September, 2025 MWANDAMBO. J.A.: The High Court (Makuru, J.) struck out a suit in Land Case No. 352 of 2015 in which the applicant and the second, third and fourth respondents were the plaintiffs and the Abdallah Njema (deceased) now represented by Zamda Abilah Njema was the first defendant and fifth respondent as second defendant. That suit was instituted in the High Court after the plaintiffs therein had lost in objection proceedings against

execution by way of demolition of houses situated in Kibaha District claimed to have been owned by the plaintiffs. Satisfied that the suit could potentially result in conflicting decisions in view of existence of another decision by the same court in favour of the defendant involving the same land, Makuru, J took the view that their remedy lied in applying for revision before the High Court and not by way of a suit. She thus struck out the suit having sustained two preliminary objections raised by the defendants' advocates. The ruling striking out the suit was delivered on 9 November 2017, The applicant was dissatisfied with the ruling. He seeks to challenge it by way of revision but since the time for doing so has since expired, on 14 November 2024 he lodged the instant application for an order extending time within which to do so. In the notice of motion and affidavit taken out through Mr. Isaac Nassor Tasinga, learned advocate who had also represented him in the High Court, the applicant attributes the delay in seeking revision to two grounds. The first relates to alleged errors on the face of the record and the second one is that he was not aware of the administrator of the deceased following his demise until 10 August 2024 through an order for execution issued by the District Land and Housing Tribunal for Kibaha. Apparently, the respondents filed no affidavit in reply in opposition, but the first respondent sought to resist the application at 2

the hearing through Mr. Nickson Ludovick, her learned advocate. For their part, the rest of the respondents represented by Ms Eunice Kabamanya, learned advocate, did not contest the application. Ahead of the hearing Mr. Tasinga lodged his written submissions in support of the application which he stood by at the hearing on 29 August 2025 conducted through video link during which, Mr. Ludovick stood for the first respondent and Ms. Kabamanya for the rest of the respondents. After hearing arguments for and against the application from the learned advocates, I reserved my ruling to be delivered on some future date. In the course of composition of the ruling, it came to my mind that there was a need to recall the learned advocates to address me on the tenability of the intended application for revision, the subject of the instant application. On 4 September 2025, the learned counsel addressed me on the issue and the first to do so was Mr. Tasinga who, upon a brief engagement conceded that the fact that the applicant had a right of appeal from the ruling sought to be challenged in the intended application for revision. In the circumstances, the applicant could challenge the impugned that ruling by way of an appeal and not through revision. Going forward, Mr. Tasinga thought that an order striking the application would appropriate which will 3

pave a way for an opportunity for the applicant to take appropriate steps to pursue the right of appeal. Both Mr, Ludovick and Ms. Kabamanya were agreeable that, in so far as the applicant had a right of appeal, the application for extension to pursue a discretionary remedy by way of revision is misconceived. They too had the same view on the order striking the application. In addition, Mr. Ludovick pressed for costs. For my part, as conceded by Mr. Tasinga and agreed by his learned friends, the appellant had a right of appeal to the Court from the order sought to be challenged in revision which struck out the suit in terms of section 8 (1) of the Appellate Jurisdiction Act, Cap. 141 (previously, section 5(1)) R. E. 2023. Consistent with the Court's decisions, in particular, Moses 3. Mwakibete v. The Editor Uhuru, Shirika la Magazeti ya Chama and Another [1995] T.L.R 134, revision is not an alternative to appeal. TTie Court has been insistent that revision cannot be resorted to where there is a right of appeal as it were it being trite that, revision and appeal are mutually exclusive and that the former is not an alternative to the latter. Consequently, he cannot legally resort to an alternative and legally untenable remedy as the applicant has attempted to do which renders the application before me misconceived. Put it differently, I cannot exercise my discretion under rule 10 of the Tanzania 4

Court of Appeal Rules to enable the applicant pursue a remedy which is not available to him in the intended application. The position in this application is similar to what obtained in a recent decision in Said Khamis Hemed v. Said Mohamed Salim [ 2025] TZCA 890 in which the application for extension of time to tile an application for revision from an appellable order was dismissed for being misconceived. Unlike the counsel's prayer for striking the application, the appropriate order will be to dismiss it because, being misconceived is not the same as saying that it is incompetent. That said, since the application misconceived, I dismiss it and order that each party bears own costs. It is so ordered. DATED at DODOMA this 4th day of September, 2025. The Ruling delivered this 9th day of September, 2025 in the presence of Mr. Isaac Tasinga, learned advocate for the Applicant also holding brief for Mr. Nickson Ludovick, learned advocate for the 1st Respondent and Ms. Eunice Kabamanya, learned advocate for the 2nd, 3rd, 4th and 5th Respondents via virtual Court, and Mr. Soud Omary, Court Clerk; is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL C. DEPUTY REGISTRAR COURT OF APPEAL