Hamisi Ramadhani vs Richard Kihwelo (Misc. Civil Application No. 133 of 1997) [1998] TZHC 2077 (26 April 1998)

( Ll\T THE HIGH COURT OF TANZANIA AT DAR ES SALAA.i"\1 MISC. CIVIL APPLICATION NO. 133 OF 1997 HAl-flSI \1ADHANI ........................ APPLICA.tT'f VERSUS RICHARD KIII'.VELO.~ ................ ~ ......... RESPOl\1DEl\T'f RlJLING KALEGEY A, J. One J:-I..amisi Ramadhani, Applicant by way of chamber summons supported by affidavit prays for: (a) e::dension of time within which to file a notice of Appeal to the Court of Appeal. (b) extension of time V\i.thin which to apply for copies of proceedings; ( c) e:x1en.iion of tune witltlt1 which to file an application for leave to appeal, and (d) leave to appeal to the Cou1t of Appeal of Tanzania. on' grounds of points of law or mixed points of law and facts. The Applicant was represented by :tvh. Luanda, Advocale, while Respondent resisted the application on his own. .• All this emanated :fron tbe judgement and decree of Kisutu Resident l.'.fagistrates Court by Kaganda, PR1V1, with extended Jurisdiction. The learned PRlvr' with cx1cndcd jurisdiction decided in favour of the Respondent, Richard Kihwclo, and handed down the judgement on 12/6/97 in the absence of the parties. Application for execution followed suit and an attachment warrant in respect of the Applicant's house was issued in Seplembr, 1997, and lhis seems lo h_ave been lhe acl which jolled Applicant to alertness. By then however he cqld not take the necessar; step to challenge the relevant decision as he was akeady out of time hence the present application.

Ji hl his affidavit, expanded upon during the hearing of the application the Applicant submitted that the court did not deliver judgement on 3/6/97 as scheduled but instead did so on 12/6/97 without isswng any notice and that he was unaware of this lmtil he witnessed acts of attaching b.is house. He concluded therefore that in the premises he could not have taken in time any step required U..41.der· the law. On the other hand the Respondent observed that indeed judgement was not delivered on 3/6/97 as scheduled but on 12/6/97 on which date he was not present either as he was in Iringa on safari. He added however that when he came back L11 late August he delivered a copy of judgement to l,fr. l,fagcsa, Advocate, who had represented him (Applicant) but that the latter declined to receive it claiming that he had lost contacts with his client. He finally argued that the applicant was duty bound to make a follow up in courl so as lo he conversant with lhe slalus of lhe case. This Application on prayers (a) -tc) should succeed for the obvious follovving reasons. Both parties concede that the court did not deliver its judgement on 3/6/97 as . scheduled but on 12/6/97, and that no \Vritten notices were issued to the parties for appearance on the rescheduled date. l11ere is no evidence that the Applicant was aware of the judgement before the court broker sutfaced at his premises with an attachment order. Mr. Magesa's refusal to.receive a copy of judgement, if that is taken to be true, can't be a ground for penalising Applicant bec.ause we have no evidence that he {r'vfagesa) had any further instructions to. deal with the matter after it had been :finalised before Kaganda, PR.i\if, with extended jmirsdiction. Nor can we blame him for failure to check up the status of his case in. the court because while prudence may require him to so act, legally he is not bound to check - he would be justified to await notice especially in a situation where only judgement was reserved. L11 the premises, as there is no evidence that Applicant was aware of the delivery of judgement, this consliluies sufficient cause or reason, entitling him lo prayers (a) lo (c). Prayer (<l) is prematurely made - it can be ". ',; '/ i

I ,, 3 pursued at the opportune time now that time within which to take the necessary steps has been expanded. Application allowed to the extent indicated. · Costs to abide final event. KALEGEYA JUDGE 26/4/98 I'\