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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY

AT MOROGORO MISCELLANEOUS CIVIL APPLICATION NO. 27079 OF 2024 (Arising from Land Appeal No. 115 of 2023 before the High Court of Tanzania Morogoro Sub Registry) ALLY R. BANDA APPLICANT

VERSUS RA3ABU RASHID MSABABA 1®^ RESPONDENT AHMAD SALUM 2"^ RESPONDENT ABDALAH 3UMA 3^^ RESPONDENT SELEMANI MAHANYU 4™ RESPONDENT HASSAN MOHAMED 5™ RESPONDENT MAIMUNA HOSSEIN 6™ RESPONDENT

RULING 25/11/2024 & 29/11/2024 KINYAKA,3.: In the present application, the applicant sought the indulgence of this Court to extend time within which he can lodge a bill of costs arising from Land Appeal No. 115 of 2023. The applicant further prayed for costs and any reliefs that the Court deems just to grant. The application is supported by an affidavit of the applicant in which he deposed in paragraphs 2 through to 8 that the delay was occasioned by the time the applicant spent in litigation before this Court in Application No. 1 19283 of 2024 which he filed within time on 9^^ August but was struck on technical grounds on 7^ October 2024. He stated that from October 2024 to 24"^ October 2024, he was waiting for his salary from the government which he received on 24^ October 2024 when he instructed an advocate to prepare the present application which was lodged on 28^^ October 2024 after the admission and filing processes were complete. On 12^ November 2024, the Court granted leave to the respondents to file their counter affidavit within seven days from the date of the order upon the prayer by their learned counsel, Mr. Taslima Fadhili. However, when the matter was called on for hearing on 21^ November 2024, the respondents were yet to file the counter affidavit. They neither requested for extension of time. The matter was scheduled for hearing on 25^ November 2024. On that

date, Mr. Taslima informed the Court that they unsuccessfully uploaded the counter affidavit on the same day as they encountered technical issues in the online system. However, he did not submit any document evidencing his attempt to lodge the counter affidavit in the system or communication made with the Court. Upon the prayer by the applicant's counsel, Ms. Mariam Kapama, the Court was satisfied of the respondents' neglect and lack of seriousness In defending the present application and ordered the application to proceed ex parte. Submitting in support of the application, Ms. Kapama adopted the contents of the affidavit affirmed by the applicant as forming part of the applicant's submissions. She informed the Court that the delays in the present matter are of two categories, namely, a technical and actual delay. She associated the delay from 9^^ August 2024 when the applicant lodged a bill of costs to 7^ October 2024 when the same was struck out, as technical delay within the meaning articulated by the Court of Appeal in the case of Fortnatus Masha v. William Shija (TLR) 1997 154 and Filson Mushi v. Jitegemee 5ACC0S Limited, Civil Application 313/05 of 2021. On actual delay, she contended that from 8^^ October 2024, the applicant was looking for finance to refile the application after rectification and received his salary from the government on 24^^ October 2024 at 01:00

am. She submitted that the applicant instructed an advocate to prepare the present application the following morning on 24^ October 2024 who prepared the present application and uploaded in the online system on 25^^ October 2024 which was on Friday. It was on Monday, 28*^ October that the applicant completed the filing of the application after he was availed with the control number. She argued that the applicant managed to account for each day of delay as held by the Court of Appeal in the case of Rosemary Katunzi v. Oscar Mhagama and Sekunda Mhagama, Civil Application No. 43 of 2022 and prayed for the application to be granted together with costs and other reliefs that the Court will deem just to grant. In applications of the present nature which involves the exercise of the court's discretionary powers, I am enjoined to determine whether there exists good cause warranting the granting of an order for extension of time. It is a settled position articulated in various decisions of the Court of Appeal including the decision in the case of Lyamuya Construction Company Ltd V. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010[2011]TZCA 4(3 October 2011), that good cause include the accounting for ail the period of delay which should not be inordinate; applicant's demonstration of diligence, and not apathy, negligence or

sloppiness in the prosecution of the action that the Applicant intends to take; and if there are other sufficient reasons such as the existence of a point of law of sufficient importance including illegality of the decision sought to be challenged. My reading of the applicant's affidavit in paragraphs 2 and 3 reveal that after the respondents lost their appeal before this Court, the applicant spent from 9^^ August 2024 to 7^ October 2024 in his bill of costs No. 19283 of 2024 which was struck out for incompetence. I agree with Ms. Kapama that this constitutes a technical delay within the meaning of the decision in Fortunatus Masha (supra) which was referred by the Apex Court on page 12 of its decision in the case of Eliakim Swai and Another v. Thobias Karawa Shoo, Civil Application No. 2 of 2016 [2017] TZCA 162 (22 February 2017) where it was held that: "...a distinction shouid be made between cases invoiving real or actuai deiays and those iike the present one which oniy invoive whatcan be caiied technical deiays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal for one reason or another has been found to be incompetentand a fresh appeal has to be instituted. In the circumstances, the negligence ifany, really refers to the filing ofan incompetentappeal not the delay in filing it The filing ofan

incompetentappeal having been duly penalized by striking it out, the same cannot be used yet again to determine the timeousness ofapplying for filing the fresh appeal, It follows that the time spent by the applicant in litigating the bill of costs which was struck out on 7^ October 2024 constitute technical delay which is a good cause for extension of time. All the same, I find the applicant has managed to explain the delay from 7^ October 2024 when the bill of costs was struck out, to 28^ October 2024 when the present application was filed. Through annexure "CC" referred to in paragraph 4 of the affidavit, the applicant established that he is a government employee working at Sokoine University of Agriculture in the position of an Office Assistant and who receives salary at the end of the month. He face financial constraints which made him wait until his salary is paid in order to engage an advocate and file the present application. Annexure "DD" referred to in paragraph 5 of the affidavit, is a proof of an EFD receipt evidencing the applicant's receipt of consultation services from Vindex Law Chambers on 24^^ October 2024 immediately upon receipt of his salary on the same day. The record indicate that it is Ms. Kapama of Vindex Law Chambers who drew the present application culminating to its filing on 28^ October 2024. I respectfully acknowledge that it is the settled stance

of taw that generally financial constraint does not constitute sufficient cause for delay. [See the cases of Josephat Mwemezi Bakuza v, Winifrida Mukono and Another, Civil Application No. 82504 of 2023[2024]TZCA 270(9 April 2024) and Hamisi Mponda v. Niko Insurance Tanzania Limited and Others, Civil Application No. 254 of 2021 [2023] TZCA 240 (10 May 2023)] just to mention a few. However, I am of the position that there are some peculiar circumstances in which the court might accept the reason. In the case of Philemon Mang'ehe t/a Bukine Raders v. Gesso Herbon Bajuta, Misc. Civil Application No. 374/02 of 2022 [2023] TZCA 17672(29 September 2023), the Court of Appeal on page 12 through 13 of its decision expounded on the exception to the grant of extension of time premised on the applicant's financial constraint as follows: generally, lack ofadequate financial resources to engage an advocate, does not fall within the realm ofgood cause to grant extension oftime to perform a certain step in litigation. However, in peculiar circumstances where, like in this application, the applicant who is a lay person who fended for himselfas he could not manage to afford medical and/or legal services, the said handicap cannot be taken lightly. I take it as sufficientiy demonstrated that the applicant's delay is exceptionally excusable. In view of whatI have stated above, it is my settled view

that, the delay, in the circumstances of this application is with good cause." 7 ^ In this matter, the peculiar circumstance include the promptness demonstrated by the applicant to lodge the present application immediately upon receipt of his salary from the government; and that the delay vjas not inordinate and which was sufficiently accounted for. There are litany of authorities to that effect. For instance, in the case of Murtaza Mohamed Raza Virani Another v. Mehboob Hassanali Versi, Civil Application No. 448 of 2020[2023]TZCA 6(7 February 2023)the Court of Appeal observed as follows on page 12 of its decision: "For that reason, Ifind that the applicants accounted for every day of delay. From 17th September, 2020 to 29th September, 2020 the 1st applicant was sick and from 29th September, 2020 to 7^ October, 20201 find that the period was not inordinate given that the applicants needed time to prepare and file the application. My position is fortified by the decision of this Court in the case ofAttorney General v. Oysterbay Villas Limited & Kinondoni Municipal Council, Civil Application 299/16 of 2016 where the delay of45days was described as notinordinate considering one has to prepare and file an application for extension oftime. * * From what I have narrated earlier above ,I find the delay from 7*^ October 2024 when the bill of costs was struck out to 28^^^ October 2024

when the present application was ultimately filed well accounted for by the applicant. In the upshot, I hold that the applicant managed to demonstrate good cause warranting the grant of an order for extension of time. Consequently, I allow the application. I order the applicant to file his bill of costs within 30 days from the date of this order. Due to the nature of the application, and in view of the fact that the same proceeded ex parte, I make no order as to costs. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 29^^ day of November 2024. I. A. KINY^KA i i- ; X/

JUDGE 29/11/2024