MCA NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION. 13329 OF 2024 (Originating from the District Court of Kigamboni in Civil Case No. 2 of 2023) BOAZ SAMWEL (Administrator of the Estate of the Late Hosea Justine Mlishi) …..………………………………….…. APPLICANT VERSUS LEWIS GORDEN SETH ........................................…………………. RESPONDENT RULING 19th September & 31st October, 2024 BWEGOGE, J.: The above-named applicant instituted the application herein praying this court to enlarge the time within which he may file petition of appeal in this court out of time against the decision of the Kigamboni District Court in Civil 1 Case No. 2 of 2023. The application is brought under the provision of section 14(1) of the Law of Limitation Act [Cap 89 R.E. 2019] and supported by the affidavit of Boaz Samwel, the applicant herein. The applicant appeared in person and fended for himself. Likewise, the respondent herein fended for himself. This court granted leave to the parties herein to argue the application by way of written submissions to afford them the room to seek legal assistance. The applicant duly filed his submission in chief, but the respondent. The applicant submitted that this court is enjoined with power to grant the extension of time sought upon the same furnishing sufficient reasons pursuant to section 14 (1) of The Law of Limitation Act [Cap 89, R.E 2019]. The case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women’s Christian Association of Tanzania, (Civil Application 2 of 2010) [2011] TZCA 4 was cited to make the point. In a bid to account for the delay, the applicant submitted that the delay in filing an appeal was not occasioned by his negligence or sloppiness, but technical delay. That the applicant herein timely instituted an appeal (Civil 2 Appeal No. 25489 of 2023) in this court but it was struck out on 8lh May, 2024 for being improperly filed. The applicant enlightened this court that he requested to be supplied with the ruling of this court on 24th May, 2024. However, it was not until 31st May, 2024 that a copy of the ruling was availed to him. Having obtained a copy of the judgment he sought legal aid from the institution namely, Legal and Human Rights Centre where the pleadings were prepared and duly filed on 6th June, 2024. The applicant asserted he acted promptly in lodging this application which entitles him grant of extension sought. The case of Ramadhani Nyoni vs. M/S Haule & Company Advocates [1996] TLR 71 was cited to bolster the point. In tandem with the above, the applicant raised the plea of illegality of the judgment sought to be challenged. He alleged that, being a layman, was denied the right to be afforded the right to be heard in the trial court contrary to the law. He cited the case of Arcopar (O.M.) S. A. vs. Herbert Marwa and Family Investments Co. Ltd & Others (Civil Application No. 94 of 2013) [2015] TZCA 554 to buttress his point. Based on the above grounds, the applicant prayed this court to allow this application. 3 The respondent herein vehemently contested the application herein in his counter affidavit. He countered that the earlier appeal was struck ought for the applicant’s negligence, though he refrained to provide particulars to that effect. Further, the respondent countered that the purported illegality is misconceived as the applicant was afforded right to be heard by the trial court. He prayed this court to dismiss the application herein with costs. The question for determination is whether the application herein has substance. The provision of section 14(1) of the Law of Limitation Act enjoins this court with power to grant extension of time in which to file appeal beyond the prescribed period for sufficient cause. In gauging whether the applicant has established sufficient cause for grant of extension sought, the superior Court in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 formulated following criteria for consideration: 1. The applicant must account for each and every day of delay. 2. The delay should not be inordinate. 4 3. The applicant shows diligence and not apathy, negligence or sloppiness in prosecution of the action he intends to take. 4. If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance, such as illegality of the decision sought to be challenged. As aforementioned, the applicant sought to establish that the time elapsed in prosecuting an incompetent appeal which was filed timely amounted to technical delay. Admittedly, it is a rule of law that the time spent by a litigant in the prosecution of the matter which is later found incompetent and struck is but a technical delay which is explicable and excusable in law. See the cases; Bank M T. Ltd vs. Enock Mwakyusa (Civil Application No. 520 of 2017) [2018] TZCA 291; Fortunatus Masha vs. William Shija and Another [1997] TLR 154; Salvand K. A. Rwegasira vs. China Henan International Group Co. Ltd., Civil Reference No. 18 of 2006, CA (unreported); and Yara Tanzania Limited vs. DB Shapriya and Co. Limited, Civil Application No. 498/16 of 2016, CA (unreported) among others. 5 In particular, in the case of Fortunatus Masha vs. William Shija and Another, the superior Court held: "A distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays 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 incompetent and a fresh appeal has to be instituted. In the circumstances, the negligence if any refers to the filing of an incompetent appeal, not the delay in filing it. The filing of an incompetent appeal having been duly penalized by striking it out, the same cannot be used yet again to determine the timeousness of applying for filing the fresh appeal. In fact, in the present case, the applicant acted immediately after the pronouncement of the ruling of this Court striking out the first appeal." Further, the court expounded: "... a distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays 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 incompetent and a fresh appeal has to be instituted. In the circumstances, the negligence if any really refers to the filing of an incompetent appeal not the 6 delay in filing it. The filing of an incompetent appeal having been duly penalized by striking it out, the same cannot be used yet again to determine the timeousness of applying for filing the fresh appeal. In fact, in the present case, the applicant acted immediately after the pronouncement of the ruling of this Court striking out the first appeal." It is a glaring fact that the suit in the lower court was determined on 27th December, 2023. The applicant timely lodged the appeal [Civil Appeal No. 25489 of 2023] in this court on 13th November, 2023 which was struck out on 08th May, 2024 for being incompetent. A copy of the ruling was supplied to the applicant on 31s1 May, 2024. And the applicant spent 6 only days to find legal assistance and lodged the application herein on 06th June, 2024. It is my considered opinion that 6 days, in the circumstances of this case, is not inordinate delay. It is obvious that the application acted promptly in taking legal action. Thus, I am satisfied that the applicant has accounted for the period of delay. Given the foregoing, I find the applicant had demonstrated sufficient cause to be entitled to grant of extension sought of which I hereby grant. The application is hereby allowed. 7 The applicant to file the notice and intended appeal within 14 days from the date of this order. Order accordingly. DATED at DAR ES SALAAM this 31st October, 2024. O. F. BWEGOGE JUDGE 8