Faraja Kyando (Administrator of the Estate of the Late Atupele Kyando) vs Elisha Ngao (Miscellaneous Land Application No. 23216 of 2025) [2026] TZHC 2990 (5 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA MISCELLANEOUS LAND APPLICATION NO. 23216 OF 2025 (Arising from Land Appeal No. 1484 o f2025 in the High Court o f Tanzania Mbeya Sub- Registry, and originating from Land Application No. 24 o f2023 in the District Land and Housing Tribunal of Mbarali at Rujewa) FARAJA KYANDO (ADMINISTRATOR OF THE ESTATE OF THE LATE ATUPELE KYANDO) .................................... APPLICANT VERSUS ELISHA N G A O .............................................................................. RESPONDENT RULING Date of Last the Order: 21.05.2026 Date of the Ruling: 05.06.2026 A.E. Mwipopo, J. Faraja Kyando as an administrator of the estate of the late Atupele Kyando, the applicant, file the present application for the restoration of Land Appeal No. 1484 of 2025 before this court between the applicant and Elisha Ngao, the respondent, which was dismissed for want of prosecution. The applicant who was the appellant in the land appeal filed the submission in chief out of the schedule provided in the court's order as a result this court i

dismissed the appeal for a want of prosecution. The application was filed by chamber summons supported with the affidavit of Secilia Luhanga, the applicant's advocate. In the chamber summons, the applicant was praying for the following orders:

1. That this honourable court be pleased to set aside its order dismissing Land Appeal No. 1484 of 2025 for non-compliance o f filing written submission on the prescribed date.
2. That this honourable couth be pleased to restore Land Appeal No. 1484 o f2025 to hearing on merit. In the affidavit, the applicant's advocated stated in paragraph that on the 29th of August 2025 this Honourable Court dismissed my appeal for failure to file written submissions within the prescribed time. He said that the delay was due to an inadvertent misunderstanding that the deadline for filing the applicant's written submission was the 6th of June 2025, instead of the 5th of June 2025 as directed by the Court. He added that the delay in filing the written submissions was not deliberate but was occasioned by a genuine misunderstanding of the Court's directions. The respondent filed a counter-affidavit in opposition of the application. He stated that the reasons adduced by the applicant does not warrant the 2

application be tenable, since each party and their advocates were present at a time of the appellate court in scheduling order. The background of the application reveals that the respondent successfully sued the applicant before the Mbarali District Land and Housing Tribunal at Rujewa in Application No. 24 of 2023. Aggrieved with the decision, the applicant filed before this court an appeal registered as Land Appeal No. 1484 of 2025. On 22nd May 2025, by consensus, it was agreed that the hearing be disposed through written submissions. The court ordered the applicant to file the submission in chief before the 05th of June 2025, reply submission be filed on or before the 19th of June 2025, and rejoinder, if any, be filed by the applicant on or before the 26th of June 2025. The applicant filed their submission in chief on 06th June 2025, as a result, this court dismissed the appeal for failure of the applicant to prosecute their appeal. The applicant was not satisfied and filed the present application seeking to restore the dismissed appeal. Advocate Cecilia Luhanga represented the applicant at the hearing, whereas Advocate Lugano Mwalubunju represented the respondent. Counsels representing the parties were invited for their oral submissions. 3

The applicant's counsel prayed that this court restore the Land Appeal No. 1484 of 2025, which was dismissed for a want of prosecution for failure to file a written submission within the time ordered by the court. She said that the delay to file the written submission was not a negligence of the applicant's lawyer. This court ordered in the land appeal that the applicant shall file the written submission by the 05th of June 2025, but the applicant's advocate filed it on the 06th of June 2025. The delay was caused by human error and not the advocate sloppiness. This court may allow the application for restoration of the case dismissed for a want of prosecution if there are sufficient reason. In this, case the delay was for one day caused by misunderstanding on the deadline of filing the written submission. It is settled that the mistake by the advocate should not deny the party the right to be heard. In Shah vs Mbogo and Another (1967) ETA. 116, the East Africa Court of Appeal held that the discretion of the court will be used to prevent injustice caused by accident, in advent, or any excusable event. The cause for the delay was the failure of the applicant's advocate to hear the last date for filing a written submission, and it was not a sloppiness of the applicant or disrespect to the court. The respondent will not be affected by the act of restoring this application, but the parties will get the chance to be heard on 4

merits. The applicant is seeking his right to be heard on merit on the dismissed suit. She prayed that the application to be allowed. In his reply, the respondent's counsel said that it is the cardinal principle that it is the discretion of the court to allow such an application for restoration. In Mbogo and Another vs Shishi (1968) E.A. 93, the court stated what amount to good cause. The applicant's reason for the restoration of Land Appeal No. 1484 of 2025 before this court are not sufficient. There is no dispute that the applicant delayed for one day to file the written submission according to the scheduling order of the court in Land Appeal No. 1484 of 2025. Even a single day for a delay has to be accounted for under the law, as it was held in Tanga Cement Company Limited vs Jumanne D. Masangwa and Another, Civil Application No. 6 of 2021, Court of Appeal of Tanzania at Tanga (unreported). The reason stated by the applicant were not sufficient and unproven “asTit wasTield in Shanti vs Hichonda (1973) E.A. No. 20. The applicant's advocate and the applicant were present when this court gave the scheduling order that the applicant shall file a submission in chief by the 05th of June 2025 in the Land Appeal No. 1484 of 2025. Failure to hear the date for filing the written submission means they were not diligent enough. Failure to know the date for filing the written submission while present in the court room is the proof that the applicant and his counsel were 5

not diligent. The circumstances in the cited case of Shah vs Mbogo and Another (1967) E.A. 116 differs from the circumstances in this case. The counsel prayed that the application be dismissed with costs. The applicant's counsel rejoined by re-affirming her submission in chief. She added that the delay was caused by human error which was not caused by negligence. From submissions, the issue for determination is whether or not the applicant has shown sufficient cause for the Court to restore the dismissed appeal. The Court has the discretion to re-admit the case, which was dismissed for the non-appearance of the plaintiff or the applicant under Order XXXIX rule 19 of the Civil Procedure Code Act, Cap. 33 R.E. 2023. Order XXXIX rule 19 piovides llidl. __________ _ ___ ___ " 19. Where an appeal is dismissed under sub-rule (2), o f rule 11 or rule 17 or rule 18, the appellant may apply to the Court for the re-admission o f the appeal, and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required ' the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks f it " 6

The above cited section gives discretion to the court to re-admit the case dismissed for non-appearance where the applicant has provided sufficient explanation for the failure to appear on the date the matter was dismissed. The determinant factor in such an application for setting aside a dismissal order is whether the non-appearance by the applicant was justified. See. Hassan Hamis Nzomari vs Edmund Thomas Lusebe and 3 Others, Misc. land Application No. 351 of 2019, High Court Land Division at Dar Es Salaam (Unreported), and Nasibu Sungura vs Peter Machumu [1998] TLR 501. The applicant's ground for re-admission deposed in the affidavit in support of this application and submission was that the delay to file the written submission was not a negligence of the applicant's lawyer and the applicant wrongly heard that they have to file the submission in chief before or on the 6th June 2025, while the court ordered them to file their submission before or on the 5th June 2025. They filed the submission in chief on the 6th of June 2025 because of human error and not sloppiness. The delay was for one day caused by misunderstanding on the deadline of filing the written submission. The respondent's counsel submitted that the applicant's reason for the delay to file the written submission were not sufficient and unproven,

and the applicant's advocate and the applicant were not diligent enough because they were present when this court gave the scheduling order but they failed to hear the date for filing the written submission. With due respect, I don't agree with the respondent's counsel that the applicant and his counsel were not diligent for failure to hear the date for filing their written submission. Failure to hear the correct date for filling a document may be caused by several factors including human error. Besides, after this court dismissed the Land Appeal No. 1484 of 2025 for want of prosecution on the 29th of August 2025, the applicant filed the present application for re-admission on the 10th of September 2025. The applicant used 12 days to prepare and file the present application. The same shows that the applicant is diliyeul and biLillJias Interest to pursue his appeal, l-m satisfied that the applicant has demonstrated a sufficient cause for the delay to file the written submission, the delay was not inordinate and have been diligent in filing this application within a reasonable time after the appeal was dismissed. Therefore, the application is granted. The Land Appeal No. 1484 of 2025 before this court is re-admitted. The Hon. Deputy Registrar shall

proceed with the procedures of re admission of the appeal accordingly. The parties shall make a follow up of the re-admitted appeal. In the circumstances of this case, each party shall cover its own costs of this application. It is so ordered accordingly. Dated and signed at Mbeya on the 5th dav of June 2026. JUDGE 9