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COMMERCIAL DIVISION
AT OAR ES SALAAM
MISC.COMMERCIAL CAUSE NO.70 OF 2013
1. ANDREW WISTON KALELA NDIMBO
2. CHRISTINA ANDREW NDIMBO
1st APPLICANT
2nd APPLICANT
VERSUS
1. SULEMAN MOHAMED KHAMIS
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
affidavit
of ANDREW WISTON
60,000,000 1=. The suit ended with a consent settlement and a decree
entered by this Court. The 3rd Respondentfiled application for execution of
the Decree by selling Plot No. 241 Block "G" Tabata, Dar es Salaam. The
Applicants claim that the said plot was fraudulently sold by a purported
public auction to the 2nd Respondent.The Applicants allege in the affidavit
the following particulars of fraud; that, no duly public auction was
conducted for the sale of the said plot; that, no publication of the alleged
public auction was made; that, the purported proclamation of sale did not
state the true amount for the recovery of which the sale was ordered; that,
the alleged public auction was conducted before the expiry of the 30 days
prescribed period from the date of the purported proclamation of sale
issued by the Court and that before the purported sale as there was no
court order for attachment of the said plot. The Applicants contend further
that upon noticing those fraudulent actions, they filed an application in this
Court to set aside the said sale, which was struck out on technicalities on
the 31st July, 2013. The Applicants however, are still aggrieved with the
illegal sale of the plot and since time to challenge the said sale has expired
the Applicants are now seeking extension of time since they are bonafide
prosecuting the former application.
Responding to the submissions of Mr. Nassoro in support of the
Application, Mr. Masaka learned Counselfor the Respondentsargued that,
fraud is not a ground warranting the Court to grant extension of time. The
applicant was supposed to account each day delay from the day when
execution was taken place, Mr. Masaka further submitted. Mr. Masaka
submitted further that since the execution took place on the 30th October,
2011, that is the date in which the Applicants' property was sold by public
auction and therefore the Application to set aside the sale ought to have
been lodged in this Court within 30 days from the date of the sale.
According to Mr. Masaka, there is no explanation in the Applicants' joint
affidavit accounting for the delay. Mr. Masaka referred this Court to the
case of
AL-IMRAN
INVESTMENT
LTD
VERSUS
PRINTPARK
''In order for the applicant to have benefit of section 14(1) the
Applicant ought to explain the delay of every day that passes beyond
the described period of limitation. Sadly, as stated above there is no
such explanation at all let alone sufficient cause that has been given
by the Applicant There is no material before me on which I can base
my judicial discretion to extend the period of limitation. "
Investment Ltd and Daudi Haga (above) that they are irrelevant. Mr.
Nassoro added that, the previous application was struck out on 31st July,
2013, and this application was filed on the 2nd August, 2013, which is a
delay of two days. Mr. Nassoro surmised by arguing that, it is well known
that, where fraud is alleged in any proceedings, the Court is always bound
to grant extension of time, but did not cite any case authority for this
disposition.
The present application which is for extension of time has been
brought under section 14(1) of the Law of Limitation Act Cap.89 R.E 2002.
Section 14(1) which provides that:
The Applicants have advanced the reasons for the delay in applying
for extension of time in paragraph 6 of their joint sworn affidavit in support
of the application. The Applicants state therein that, all the time they were
bonafide prosecuting the application for setting aside sale, which
application this Court struck out on the 31st July 2013. The issue is whether
this reason constitutes reasonableor sufficient cause for this Court to grant
extension of time. As per the court record, the "purported" sale of the suit
property on Plot NO.241 Block "G" Tabata Dar es Salaam was made by
public auction on the 30th October, 2011. The Applicants lodged their
application for setting aside the said sale in this Court on the 1ih
November, 2011. This Court pursuant to that application entered its ruling
st
on the 31
account for the delay are reasonable or sufficient for this Court to grant
extension of time. The Applicants have advanced as their main reason for
the delay, that they were bonafide prosecuting the application for setting
aside sale, which this Court struck out on technicalities on the 31st July
2013. Indeed the Court record shows that since 30th October, 2011, the
Applicants have been busy trying to set aside the purported sale and they
allege the sale was tainted with fraud. Allegation of fraud is a serious one,
which the Court should not take lightly. This being the case therefore,
considering that the Applicants are alleging the existence of fraud in the
purported sale of the suit property, this constitutes a sufficient ground for
this Court to extend time for the Applicants to bring application for setting
aside the sale of Plot NO.241 Block "G" Tabata Dar es Salaam. This will
provide an opportunity to Court to determine whether indeed there was
fraud in the sale of the suit property as the Applicants allege.
It is for the above reasons that the application for extension of time
succeeds. The Applicants are hereby granted extension of time to bring
application to set aside the sale of the suit property Plot No.241 Block "G"
Tabata Dar es Salaam within fourteen days of this order. Costs shall follow
the event. Order accordingly.
R.V. MAKARAMBA
JUDGE
01/11/2013
Mr. Andrew Weston Kalela Ndimbo, the 1 Applicant in person and in the
absence of the Respondents.
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R.V. MAKARAMBA
JUDGE
01/11/2013