Clement Ruling

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

AT MWANZA MISC. CIVIL APPLICATION NO. 13553 OF 2024 (Arising from Civil Appeal No. 64/2004 High Court Mwanza originated in Civil Appeal No.49 in the District Court of Musoma ata Musoma original Civil Cause No.17 of 2003 Musoma Primary Court) CLEMENT KYARO ………………………….…………………..……… 1STAPPLICANT THOMAS TARAGWA .............................................................. 2ND APPLICANT ISMAIL ABDALLAH MABULA (The Administrator of the estate of the late Taabu Ayoro) ................................................. 3RD APPLICANT

VERSUS CYPRIAN VICTOR NYANGWE ……………………........................ RESPONDENT

RULING 24th & 29th October, 2024 CHUMA, J. The applicant in this application moved this court to grant an extension of time to apply for certification on point of Law out of time. Cost of the application and any other relief this court deems fit to grant. The application is supported by the joint affidavit of the applicants. In this application, Mr. Maya's advocate appeared for the applicants while Mr. Mutta's advocate represented the respondents. Submitting for the applicant Mr. Maya advocate’s after adopting the filed affidavits to form a party of his submission argued that, the application emanates from the decision by Hon. Masanje J, in Civil Appeal No. 64/2004. In accounting for 1|Page each day of delay, the applicants since 2008 were in court’s corridor challenging execution in which they emerged the winner. In 2017 the respondent successfully filed another execution at the primary court. Later in the same year the applicants unsuccessfully challenged the primary court’s decision before the District Court of Musoma. They then filed a revision application before the High Court in 2018 but was dismissed. In 2019 the applicants opted to approach the Court of Appeal but the same was withdrawn for want of certification on point of law. From 2020 the applicants started applying for an enlargement of time to apply for certification on point of law to challenge execution which

was later withdrawn and filed the instant application to challenge the decision of Hon. Masanje J. The restored decision of Primary Court of Musoma by Hon. Masanje J, was tainted by illegalities that require intervention by the Court of Appeal. He supported his submission by the case of Rovitha Kemilembe Vs. MIC Tanzania Limited Civil Application No. 192/17 of 2021 on page 5. In this case, it was held that Illegality can by itself suffice as a good cause for an extension of time. 2|Page Mr. Maya further argued that based on the above authority, an extension of time may be granted on illegality grounds if the same is on the face of the record. On annexture CK1 which is Musoma Primary court decision, on page one contains contradictions on the timeline of the sale on the disputed plot in the first and third paragraphs. Such contradiction is an error amounting to illegality on the face of the record. From the above submission, he urged this court to find the application meritable on illegality concern and allow the sought relief with cost. Mr. Erick Mutta advocate on the other hand having adopted the respondents’ counter affidavit as part of his submissions argued that, the decision subject to this application was decided in 2006. Even if we are to center on technical delay still the application is late for 5970 days to date but since 2006 the delay is about 700 days which remains

unaccountable. Because for all that time, the applicants was in court corridors dealing with execution the matter that has nothing to do with this matter at all. The second ford is on illegality, in which he did admit that the same has to be on the face of record. The applicants’ affidavit does not contain 3|Page or point out the alleged illegality. What is submitted here by assumption is reflected in paragraph 17 of Crement Kyaro and Paragraph 18 of Ismail Mabula but the same needs evidence which does not qualify as be point of illegality. This position was held in the case of Charles Kombe Vs. Kinondoni Municipal Council Civil Reference No.13 of 2029 on pages 7 to 8. The judgment subject to this application was well reasoned, he then prayed this application be dismissed for want of merit with cost. In his brief rejoinder, Mr. Maya's advocate on illegality concern was in agreement with Mr. Mutta that it should be on the face of record. And that in his submission he referred to the said illegality in the Primary Court judgment which is the record of the court. The pointed-out illegality does not require evidence. In the applicants’ affidavit paragraph 17 C, the same has been indicated. He insisted on his prayer for this court to allow the sought order. Having heard the contending submissions of the parties, this court is duty-bound to determine whether this is a suitable

occasion to condone the delay involved and proceed to extend the time to apply. The position of law is quite clear that in an application of this kind, the applicant must establish sufficient cause as held in the case of Bushiri 4|Page Hassan Vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported). The conditions were set out in the case of Lyamuya Construction Company Ltd Vs. Board of Registered Trustee of Young Women's Christian Association of Tanzania Civil appeal No. 2/2010. What amounts to sufficient or good cause has been discussed in a range of cases including the Court of Appeal case of John Mosses and Three Others Vs. The Republic, Criminal Appeal No. 145 of 2006 where the position of the law stated in the case of Elias Msonde Vs. The Republic, Criminal Appeal No. 93 of 2005 was quoted. The Court of Appeal stated: “We need not belabor the fact that it is now settled law that in an application for extension of time to do an act required by law, all that is expected by the applicant is to show that he was prevented by sufficient or reasonable or good cause and that the delay was not caused or contributed by dilatory conduct or lack of diligence on his part”. See also the Court of Appeal decision in the case of Blue Line Enterprises Ltd. Vs. East African Development Bank, Misc. Application No. 135 of 1995 (unreported) where it was held that:- 5|Page “It is

trite law that extension of time must be for sufficient cause and that extension of time cannot be claimed as of right, that the power to grant this concession is discretionary, which discretion is to be exercised judicially, 'upon sufficient cause being shown which has to be objectively assessed by Court." From the above position, the reasons advanced by the applicant in his application are technical delay and illegality. As rightly submitted by Mr. Maya’s advocate, the record is quite clear that parties appeared on several occasions before the court since 2008 to date pursuing their matter in different forums and the record reveals that they reached the court of appeal as well. This submission was strongly challenged by Mr. Mutta advocate for the respondent asserting that in all that period the applicants were in courts’ corridor challenging the execution issue which has nothing to do with this matter. I subscribe to his position but with reservation that even if it was for execution first the execution emanates from the impugned decision. And two the applicants’ were misled or rather not well advised on a proper path or forum to channel their concerns. It is unbecoming though for what happened because the record indicates that the parties were represented. Be that as it may, the applicants via Mr. Maya's advocate narrated 6|Page a chain of events explaining what transpired

from 2008 to date. Though he might have not managed strictly to account for each day of delay as submitted by the respondent advocate he has shown sufficiently in my view that the applicants’ were diligently pursuing the matter. I am arguing so because each case has to be decided on its circumstance which in this case the principle applies for the sake of justice. It is this court's findings that the applicants managed to justify the reasons for the delay to be none other than technical delay which is explicable and excusable. This stance was held in several cases including the case of Salvand K.A. Rwegasira Vs. China Henan International Group Co.Ltd Civil Reference No. 18 of 2006 and that of Fortunatus Masha Vs. William Shija and Another [1997] TLR 154. On illegality concern, it is my view that since this application is an extension of time for the applicant to apply for certification on point of law to be determined by the Court of Appeal. In that vein, it need not dwell much that showing if the purported error is on the face of the record in which this court answers positively, unlike the submission by Mr. Mutta's advocate. From the above discussion, the backdrop of this matter, and guided by the above authorities the reasons advanced by the applicants constitute sufficient cause for this court to think of granting the sought 7|Page order. My decision is aided by the

decision in the case of Yara Tanzania Limited (supra) where Kenyan cases of Savings and Loan Kenya Ltd. Vs. Onyacha Bwomonte, Civil Application No. 70 of 2004 and Belinda Murai & Others Vs. Amos Wainaina, Civil Application No. 9 of 1978 were cited, in those cases the court held that the court should not keep the door of justice closed as the duty of the court is to dispense justice to the parties. That said and done, I find the instant application meritorious and is accordingly granted. The applicants are accorded 14 days to lodge the intended application. Owing to the circumstances of the matter I desist from making an order for cost. It is so ordered. DATED at MWANZA this 29th day of October, 2024. W.M. CHUMA

JUDGE 8|Page The ruling delivered in court before the first and third applicants, Mr. Renatus for the respondent and in absence both Learned counsels for the parties this 29th day of October, 2024. W.M.CHUMA

JUDGE 9|Page