Misc Civil appl No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE MISCELLENEOUS CIVIL APPLICATION NO. 16797 OF 2024 (Arising from the decision of Matrimonial Cause No. 30 of2021 in the District Court of Temeke at Temeke One Stop Judicial Centre) ATHUMANI B. NINGA.................................................................. APPLICANT VERSUS CHIKU S. KITUMBOY @CHIKU SAID KITUMBO, CHIKU SAID HAMIS, CHIKU SAID NINGA................................... RESPONDENT RULING 11th September & 17th September, 2024 BARTHY, J.: This ruling addresses an application for an extension of time to file an appeal, brought under section 14(1) of the Law of Limitation Act, Cap 89 R.E. 2019. The applicant seeks leave to file an appeal out of time against the decision in Matrimonial Cause No. 30 of 2021, delivered on 13th June 2023, before the District Court of Temeke at the Temeke One Stop Judicial Centre. The application is supported by the affidavit of Advocate Ezekiel Joel. The respondent opposed the application by filing a counter-affidavit, Page 1 of 7 ana Doth parties presented their oral submissions in the course of disposing of the application. Mr. Ezekiel Joel, learned advocate for the applicant, submitted that the applicant had initially filed his appeal within the prescribed time on 17th July 2023. However, due to alleged administrative errors, the case was not assigned to a judge. It was later discovered that the trial court proceedings had not been attached to the appeal. The applicant was instructed to attach the missing proceedings, which were provided to him on 14th May 2024. According to Mr. Joel, this procedural oversight and technical difficulties caused the delay in filing the appeal. He further argued that the applicant had been diligent in pursuing the necessary steps to file the appeal but was delayed due to administrative processes beyond his control. He characterized this delay as "technical," citing judicial precedents where courts have recognized such delays as valid grounds for granting an extension of time. Mr. Joel referred to the case of The Director General LAPF vs. Pascal Ngalo, Civil Application No. 76/08 of 2018, to support his argument. Additionally, Mr. Joel contended that the applicant had not been negligent, emphasizing that the appeal raised strong grounds. He urged the court to grant the extension, arguing that it would not prejudice the Page 2 of 7 ~ respondent. To reinforce his position, he cited the case of Registered Trustees of Healing Ministry of Agape International (Hema International) vs. Ben Mwang'onda and 2 others, Civil Application No. 620/17 of 2021, Court of Appeal. He concluded by praying for the court to grant the application, stating that the conditions outlined in Wambele Mtumwa Shahame vs. Mohamed Hamisi, Misc. Civil Application No. 138 of 2016, Court of Appeal, had been met by the applicant. In response, Mr. Jonathan Mndeme, learned advocate for the respondent, opposed the application on several grounds. First, he argued that the nearly ten-month delay from the date of the judgment was excessive and inordinate. He submitted that the applicant had failed to account for each day of the delay, as required by law, and demonstrated a lack of diligence in pursuing the appeal. Mr. Mndeme also contended that the argument regarding the failure :o attach the trial court proceedings was unsupported, as no formal court arder or evidence had been presented to justify the delay. He referenced *ule 24(1), (5), and (6) of the Judicature and Application of Laws ^Electronic Filing) Rules, Cap. 358, emphasizing that the applicant did not adhere to proper procedural requirements. Furthermore, he argued that the appeal should have been lodged in the District Court under section 80(2) of the Law of Marriage Act, Cap 29 R.E. 2019. He contended that granting the extension would prejudice the respondent, suggesting that the delay was a tactical attempt to obstruct the execution of the trial court's decision. Mr. Mndeme also asserted that, although courts have discretion to extend time, such discretion must be exercised judiciously. He emphasized that the applicant had not demonstrated sufficient reasons for the delay, nor had he shown diligence in pursuing the appeal. To bolster his argument, he cited Lyamuya Construction Company Ltd vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010, which outlined the conditions for granting an extension of time. He concluded by praying for the dismissal of the application, arguing that the cases cited by the applicant were distinguishable from the present matter. In rejoinder, Mr. Joel reiterated his earlier arguments. He added that the remarks concerning the failure to assign the case were available online and that the court seal proved that the appeal had been filed in time. He further rebutted the respondent's claim that the appeal had been filed in Page 4 of 7 the wrong forum, arguing that this issue was not subject to determination in the present matter. He maintained his previous arguments and prayers. After reviewing the submissions, the court notes that the decision to grant an extension of time is discretionary. However, this discretion must be exercised in line with established legal principles. In cases like this, the applicant bears the burden of demonstrating sufficient cause, as outlined in section 14(1) of the Law of Limitation Act, Cap 89 R.E. 2019. While "sufficient cause" is not explicitly defined, judicial precedents have developed criteria for assessing whether an applicant's reasons are adequate to warrant an extension. The case of Lyamuya Construction Company Ltd vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), set out the following conditions that must be met: (a) The applicant must account for all the period of delay; (b) The delay should not be inordinate; (c) The applicant must show diligence and not apathy negligence, or sloppiness in prosecuting the action; (d) If there are sufficient reasons, such as the existence of a point ot law of sufficient importance, the court may grant an extension. Upon reviewing the affidavit and submissions, the court must determine whether the applicant has satisfied these conditions. Regarding Paao R nf 7 the first condition, while Mr. Joel argued that the applicant filed the appeal in time, the delay in attaching the trial court proceedings was not sufficiently explained. The proceedings were received on 14th May 2024, but the application for extension was filed on 14th June 2024—nearly a month later. This delay is unexplained, as no affidavit or supporting documentation was provided to justify the gap. While the court acknowledges the concept of "technical delay," as recognized in The Director General LAPF vs. Pascal Ngalo, such delays must be supported by clear evidence of procedural difficulties. In -» case, no official documentation was presented to corroborate the claim this of technical challenges. Furthermore, Mr. Mndeme's argument regarding the requirement to file the appeal in the District Court under section 80(2) of the Law of Marriage Act raises a legitimate procedural issue. The applicant has not adequately addressed this issue in his submissions, and it appears that the appeal was incorrectly filed in a higher court. It is clear the applicant has not satisfactorily accounted for the delay of nearly twelve months between the date of the judgment and the filing of this application. Additionally, the applicant has failed to provide sufficient evidence to substantiate the claim of technical delay. Papp fi nf 7 In light of the foregoing, the court finds that the delay is inordinate and has not been adequately explained. The applicant has also failed to demonstrate diligence in pursuing the appeal, as filing in the wrong court and failing to provide proof of procedural obstacles demonstrate negligence. Based on these findings and the applicable legal principles, the court concludes that the applicant has not provided sufficient grounds to justify the delay. Consequently, the application is dismissed. However, given the nature of the case, the court makes no order as to costs. It is so ordered. Dated at Temeke this 17th of September, 2024. Delivered in the presence of Mr. Mngumi Samadani holding brief for Mr. Ezekiel Joel Learned Advocate for the Applicant, also holding brief for Mr. Jonathan Mndeme Learned Advocate for the Respondent, Respondent in person and Ms. Bernadina Tayari, RMA. P^an 7 nf 7