Joseph Donati Kessy & Another vs Juma Magembe Ngomani (Civil Case 335 of 1999) [2000] TZHC 18 (2 June 2000)

1. JOSSPH DONATI K5BSY \ # ^ APPLICANT 2 . NEKi’S JOSEPH DONAr r I ) V errcus 'RESPONDENT JXJMA MAGIKBE N G O K A N I .... ... ............. h l i n . g 3HEMA J: j L x l ^ r u i ^ ♦ . ,QQQ -pipintiffe Joseph Donat Kessy and Nemesi On 7th September Bo_ 3, 5/9? agalm t K;GIMEE Joseph D o n a t i Beeklllg ^ o n g other, , M G O M I * * * 1 9 - « ^ o c kBS in « K i n o n d o n i W rfri.* that the M - l » f ilin g the p la in t on 7th S f l M M 199?, « ” ~ . £ « • < * ‘ Oo. Advocates also filed plaintiffs thrown the serv,c _ „ ^ Seotion 68 (C) and (e) a Chamber « * > * ° ™ « ^ ^ injunction againat - and 95 of « » ci' ’ i : L V*o«<tor. Cod<> '"»” » ^ _ . takin(, p- s e s s i o n ,st Respondent / defendant fro, evict ™ , ^ ny W 9 9 o f the houses unaer dispute an ^ ^ Defendemt entered appearance Mr. , « a Mageaibe Ngonsnx . ^ ^ ^ a p p lic a t io n . He was. p r a y e dfo r a n dw a sf ~ ^ ^ a p p lic a t io nw a ss e t «. to file his counter r.ffida/i ^ - > n < , - / hearing on 9th November, 1999. #n 9th UoTernber 1995 the applicants / plaintffs appeared ^ ^ . respondent / defendant did not appeeo. and had n o t ^ e d ^ leaye affidavit as ordered wnereat the Following the applicants/ to argue the a p p l i c a t i o n ^ on - ^ ^ so^ h t plaintiffs submissions the court P ^ against t h e Respondent / Defendan , i- # ^mlic'^ts/ . . Q+r«iPinK them f r o m herassing or evicting Oie, his authority res & u ?Q Block B Sinza plaintiffs tenants occupying the nouses o &rea pending the determination of the suit filed. Since the .rant of the temporary injunction on 9th — r J 9 ^ , ^ , • r t T 1 1 A/-i ?/QQ. 9th February 2000, ptn Aprx case has been mentioned four times on 1 ^ .V9>, 9 ■ ^ perBon ‘ and tod«y 1/6/2000. To day the 1st respondent / defendant ppe^x ^

• L A -bvpr0fes?1^orp-o rimbo who informed the court ^that he has and advocated by o ■ - > respondent / defender since ^ 0 0 accepted to take up the brn»f of h e 1st on a a aid basis. «P°n being i n f o l d of the s t a * * quo of ,

Professor Fimbo prayed for leave for extension of time to file a written statement of defence, a prayer which was vehemently resisted by Hr. Lyimo Reamed advocate for the plaintiffs. Mr. Lyrmo argued that in term.- of Order VIE I of the Civil Procedure Code, the deferent's normal time to file hi* defence is twenty one days ( 21 ) from 14/10/99 when he entered appearance unless extension of time was granted. Mr. lyiuio further argued that in terms of OrdwP VIII t.ule 1 and 2 of xrhe Civil Procedure Code as amended by fN 422/94 the court is no longer empevt-r A to es+erd time to file the defence 83 from 6 th November 1999. Mr. Lyise therefore urged the court to reject the applicntio for extension and proceed either to enter judgment or order to preve the case ex parte by oral evidence under Order VIII Rule 14 ("■), In has right of reply Professor Pimbo while conceding'to Mr. Lyimo’s argments requested the court to use its in herent powers in terms of ~-~tion 93 and 95 of tne Civil Procedure Code to grant the extension sought for the ends of justice to be met in the case under reference particularly taking into account that the defendant is illiterate with no means. It is not in dosp-’ te th-t +here ha* been an inordinate delay on the part °f the 1st defendant to file hi, Litton 5 d e m e n t defence after h ^ i n g being served with the plaint and upon entering appearance on 14/10/99, Ihere has been no sufficient c a u ^ or reapon given for the delay for thi* court to exercise either-its di.cretio^ln^rent peers under Section of the Civil Procedure Cede in line --.th the argment of Frofeseer Mgongo Fimbo. On the other hand there ip the submission by Mr. Lyimo learned advocate th, in terms of Order VIIII _%les (1) ,*d (ii) cf the Civil Pro6edure Code M amended by GN 422/94, fdlovxsg this inordinate delay this court's h3nds are tied from further extending the period tofile the defence in question. I agree and note further that the force behind the amendment in W 422/94 is to restrict the period for pleadings so that the matters under dispute go to trial earlier than later. I am afraid the 1st defendant cannot escape the force in Order VIII Pule 14 as amended by GN 422/94. Accordingly I reject the prayer for extension of time to file a defence on tie rart of the -ir« f defendant and order th-^t thp r l -in-M - p - p j j . tne ] . l ,mtiff proceed to pove the case exparte against the first defendant. S .IHEM/t JUDGE 2 / 6/2000 CORAH i IHEMA J. Plaintiffs / Applicant } xyiKo Plaintiffs / Applicant $ Defendant / Respondent Prof. Fimbo.