IN THE HIGH COURT OF TANZANIA

(MWANZA SUB-REGISTRY)

AT MWANZA

MISCELLANEOUS APPLICATION NO. 27738 OF 2024

(Arising from Land Application No. 50 of 2021 in the District Land and Housing

Tribunal for Sengerema at Sengerema)

MAYONA JAMES (Administratix

of the Estate of the Late Ngariri Mabirika Ngulungwa)……………APPLICANT

VERSUS

RICHARD MWASALEMBA………………………………………….1ST RESPONDENT

BAHATI LUHENTA………….……………………………………….2ND RESPONDENT

MAGILETI LUHENTA………………………………………………..3RD RESPONDENT

JUMA LUHENTA………………………………………………………4TH RESPONDENT

RULING

19th March & 30th May, 2025

KAMANA, J.

On 30th October, 2024, this court (Hon. Matuma, J.) dismissed

Miscellaneous Land Application No. 10783 of 2024 for being time-barred.

In that application, the applicant, Mayona James, acting in her capacity

as the administratrix of the estate of the late Ngariri Mabirika Ngulungwa,

sought to revise the ruling of the District Land and Housing Tribunal for

Sengerema in Land Application No. 50 of 2021, which had been entered

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in favour of the respondents, Richard Mwasalemba, Bahati Luhenta,

Magileti Luhenta, and Juma Luhenta.

Undeterred, the applicant has preferred this application seeking an

extension of time, citing technicalities and illegalities as the reasons for

the delay in filing for revision. The application has been preliminarily

objected to by the first respondent on the ground that this court lacks

jurisdiction to entertain it.

In support of the objection, Ms. Great Mabula, learned Counsel for

the first respondent, contended that this court lacks jurisdiction as a

matter is res judicata following the dismissal of Land Application No.

10783 of 2024 for being time-barred. Ms. Mabula held the view that the

applicant was supposed to apply for an extension of time before instituting

the application for revision. She supported her stance by relying on the

cases of Hashim Madongo and Others v. Minister for Industries

and Trade and Two Others, Civil Appeal No. 27 of 2003-CAT

(Unreported); and MM Worldwide Trading Company Ltd and Others

v. National Bank of Commerce Ltd, Civil Appeal No. 258 of 2017-CAT

(Unreported).

Responding, Mr. Madulu Madulu, learned Counsel for the applicant,

prefaced his arguments by contending that the preliminary objection

raised by the first respondent differed from the one argued by Ms. Mabula.
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He argued that the objection raised concerned the jurisdiction of this

court, whereas Ms. Mabula’s argument focused on the principle of res

judicata. He submitted that, under section 9 of the Civil Procedure Code,

Cap. 33 [RE.2019], res judicata does not pertain to jurisdiction. On that

basis, Mr. Madulu urged the court to dismiss the preliminary objection.

Addressing the preliminary objection, Mr. Madulu contended that,

despite dismissing the application, this court allowed the applicant to

pursue an extension of time in accordance with the law. He argued that

since the said order was not challenged by the first respondent, the

arguments advanced by Ms. Mabula are baseless. He further distinguished

the cited authorities, asserting that they are inapplicable to the

circumstances of this case.

In her rejoinder, Ms. Mabula reiterated her submission in chief.

In determining the preliminary objection, I respectfully disagree

with Mr. Madulu’s contention that the principle of res judicata has no

bearing on the jurisdiction of the court. Under the doctrine of res judicata,

a court is precluded from entertaining a matter that has already been

conclusively determined by a court of competent jurisdiction, unless there

is a difference in parties or subject matter. This preclusion directly affects

the court's jurisdiction to hear the matter. In this regard, I find persuasive

the reasoning of the Court of Appeal of Uganda in Maniraguha

held that:

‘In fact res judicata is a plea of jurisdiction, in that Section

7 of Civil Procedure Act (supra) bars any court from

trying a suit or even an issue that is res judicata.’

Likewise, I am persuaded by the position of this court (Mhina, J) in

the case of Godlove Hosea Nombo v. Salome Omary Kitala (As

Personal Representative of the Late Omary Fatiha Kitala and

Others, Land Appeal No. 228 of 2023-HC (Unreported) in which it was

stated:

‘Therefore, since the issue of res-judicata goes to the

jurisdiction of the court, then it is a pure point of law and

can be raised at any stage.’

As I stated earlier, Land Application No. 10783 of 2024 was

dismissed after this court found that it had been instituted beyond the

prescribed limitation period. That decision was in line with the provisions

of section 3(1) of the Law of Limitation Act, Cap. 89 [RE.2019], which

provides:

‘Subject to the provisions of this Act, every proceeding

described in the first column of the Schedule to this Act and

which is instituted after the period of limitation prescribed

dismissed whether or not limitation has been set up as a

defence.’

For the sake of clarity, the Law of Limitation Act does not specifically

prescribe a time limit for filing applications for revision. Similarly, the Land

Disputes Courts Act, Cap. 216 [RE.2019], does not set a specific time

frame for filing revision applications before this court. However, the

Schedule to the Law of Limitation Act provides that the time limit for any

application under the Civil Procedure Act, the Magistrates’ Courts Act, Cap.

11 [RE.2019], or any other written law is sixty days. This implies that the

Law of Limitation Act applies to revision applications filed in the High Court

concerning decisions of the District Land and Housing Tribunals.

Having stated that, when a matter is dismissed for being time-

barred, the dismissal order has the effect of conclusively closing the

matter with regard to the issue of limitation. In such a case, it is not open

to the same court that dismissed the matter to entertain an application

for extension of time, as the matter becomes res judicata. The only

recourse available to the aggrieved party is to appeal against the dismissal

order. See. Hashimu Madongo (Supra); and MM Worldwide

Trading Company Ltd (Supra).

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 That being the position, this application is devoid of merit since the

issue of time limitation was already determined by this court, resulting in

the dismissal of the matter. If aggrieved, the applicant should have

appealed the dismissal order rather than attempting to circumvent it by

applying for an extension of time.

I understand Mr. Madulu’s contention that, upon dismissing the

application, this court observed that the applicant was at liberty to refile

the matter after being granted an extension of time. However, in my view,

that was merely an observation and not an order of the court, and it

cannot override the established principles laid down in the cited cases.

In the upshot, I find merit in the preliminary objection.

Consequently, the application is dismissed with costs. It is so ordered.

DATED at MWANZA this 30th of May, 2025.

KS KAMANA

JUDGE