OC mca

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

ONE STOP JUDICIAL CENTRE AT TEMEKE MISC. CIVIL APPLICATION NO. 24854 OF 2024 DENNIS NKOMOLA............................................................ APPLICANT

VERSUS MARTHA MLEMETA....................................................... RESPONDENT

RULING Date of last order: 28/ 1/ 2025 . Date of ruling^ 31/1/2025 S.D. MWAIPOPO J The Applicant has preferred an Application under section 14(1) of the Law of Limitation Act Cap 89 RE 2019 praying for the following reliefs; L This this Court be pleased to grant extension of time to the Applicant to appeal against the judgement and decree in Matrimonial Cause No.280 of 2023, delivered on 141812023 before HOn. Jacob -SRM 2. Any other relief(s) this Court may deem fit and equitable to grant The Chamber Application has been taken at the instance of H/K Law Chambers Advocates and it is supported by the Affidavit of Amon Riwa, learned Advocate. The same is opposed by the Counter Affidavit of the Respondent. The hearing of the Application proceeded by way of written submissions pursuant to the time table drawn by the court vide its order dated 7th November 2025. At the- commencement of hearing, the Applicant enlisted the services of learfied Advocate Amon Rwiza. The Respondent throughout the proceedings appeared in person. In compliance with the order of the court, the Applicant filed his written submissions in support of the Application, however, the Respondent did not file any reply submissions to counter those of the Applicant. Therefore, the determination of this matter proceeded based on the submissions filed by the Applicant oniy. * Submitting in Support of the Application, the

Applicant began by praying for the for the court to adopt his Affidavit to form part of the Application. He went on stating that he has filed an application for extension of time to appeal against the Judgement of the District Court of Temeke at Temeke in Matrimonial Cause No.280 of 2023. The learned counsel submitted that he is very aware that during an application of this nature the Applicant is obliged to account for all the days of delay and the reasons for the delay thereof. He contended that the reason for the delay is stated at paragraph 10 of the Affidavit which is a single day from 30/09/2024 to 01/10/2024, whereby, according to Section 80(2) of the Carriage Act, Cap. 29 RE 2019, the time to appeal from the District Court to this Court is within 45 days from the date of the decision, and according to Section 19(2) of the Law of Limitation Act, Cap.89 RE 2019, the time/day on which the judgment was delivered shall be excluded in computation of time to appeal. He argued that, the Judgment of the District Court was delivered on 14/08/2024, therefore, he asserted that counting started from 15/08/2024, whereby the forty-fivfe days to appeal ended on 28/09/2024. The learned counsel submitted that since the deadline date fell on Saturday 28/09/2024 and the following date. i.e. 29/09/2024 was a Sunday whereby court's business is normally closed, then deadline to file the

appeal shifted to the next working day which was monday 30/09/2024. He referred the court to section 19(6) of the Law of Limitation Act, Cap 89 RE 2019. The learned counsel submitted further that; the reasons which prevented the filing of the Appeal on time are provided for under paragraphs 6, 7, 8 and 9 of the Affidavit, which are categorized in two limbs as follows; one being court's processes which hindered the admission of an appeal on time and two, sickness of the Advocate representing the Applicant. With regard to the first reason, the learned counsel for the Applicant submitted that; the Appeal was duly filed in court via the Judicial Online System (https://cmsjudiciary.go. tz/civii/efiiing/create') on 30/09/2024 through Advocate Amon Rwiza 's account. He referred the court to annexture DS-3 in the Affidavit and asserted that up to the end of working hours of the court, that is to say 15:00am, the Appeal was yet to be admitted so as to generate the control number for payment, in order to affect the filing process. He contended that the said Appeal was admitted % in the morning of 01/10/2024 and the control number was issued accordingly but if he could have paid the bill on that date he would have already been out of time for one day and the appeal could have been found to be out of time hence, he decided to file this Application. contending that a period of one day which

lapsed was spent on drafting and filing of this Application. Regarding the second ground of delay, the learned counsel for the Applicant contended that, he was engaged to file an appeal against the Judgment in Matrimonial Cause No.280/2023 on 18/09/2024 and since the time to appeal was still available, the preparation of an appeal started from the material date for purposes of the appeal being filed before the deadline on 28/09/2024 but unfortunately on 24th September, 2024 the learned -counsel^elt sick due to an outbreak of the diarrhea disease, an illness which prevented the learned counsel to report to work or go to his office up until on 30/09/2024, after getting some relief on 28/09/2024. He referred the court to annexture D-2 to the Affidavit. The learned counsel contended that the sickness encountered was beyond the Applicant and the learned counsel control, hence this Application. With regard to the authorities cited, he contended that courts of law have % been recognizing sickness as a sufficient reason for extension of time, if illness can be proved by evidence. He referred the court to the case Of FINCA TANZANIA LIMITED v HASSAN LOLILA, CIVIL APPLICATION NO.165/18 OF 2021 COURT OF APPEAL (reported on Tanzilii.com) where it was stated that: "It is common ground that health matters in most cases are not the choice of human beings; they cannot be shelved and nor

can anyone be held to blame when they strike. The Applicant's failure to appear on the date of hearing of the application was prevented by sickness which in my view is sufficient cause...." Based’^n the above cited quotation, the learned counsel submitted that since the Applicant was represented by an advocate AMONI RWIZA with an instruction to file an appeal, then he should not be the one to blame as failure to file an appeal within 45 days was caused by sickness of the advocate as evidenced by Annexture DS-2 attached to the Affidavit. Similarly^, when the appeal was filed on the deadline date that is to say 30/09/2024, the same was not admitted on time to enable the Applicant to % pay for the same and complete the filing process. The learned counsel for the Applicant contended that the Applicant has a big chance of success in an intended appeal as the trial court erroneously held that the house built at Changanyikeni-Dar es salaam to be a matrimonial property while the same was built in the land which does not belong to any of the parties thereof, and the evidence to that effect was duly tendered in the trial Court. He thus prayed for the court to find merit in this Application and enlarge time for the Applicant file his appeal. Having? gone through the submissions of the Applicant, the pertinent question to be resolved is whether the Application has merit. It is trite law

that Applications for extensions of time are within the discretion of the court. As per the record, the Application is pegged under section 14 of the Law of Limitation Act Cap 89 RE 2019, which grants this court wjth power and discretion to extend time. However, the said section does not provide for guidelines for courts to consider when extending time. % What is required is for the said discretion to be exercised judiciously based on the sufficient reasons furnished by the Applicant. What amounts to sufficient cause has not been defined and from decided cases a number of factors have to be considered including whether or not, the Application has been brought promptly, the absence of any valid explanation and lack of diligence on the part of the Applicant. See the case of Tanga cement company Ltd vs Jumanne Massanga and Another civil Application no. 6 of 2001(unreported). Similarly, in Applications for extension of time, accounting for each day of delay is one of the requirements which is applied by the courts in the exercise of its ‘ judicial discretion. See the case of Bushiri Hassan Vs Latifa Lukio Mashayo, Civil Application No. 3 /2007(unreported) cited in the CAT Civil Application No. 210/20 of 2017 between Selemani Juma Masala vs Sylvester Paul Mosha and another 3/200 (unreported). Furthermore, in the case of Lyamuya Construction Ltd vs Young Women Christian Association,

the CAT developed the following criteria to be considered when one applies for extension of time; 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 the prosecution of the action he intends to take and d.If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance such as the illegality of the decision sought to be challenged. Coming back to the instant Application and based on the submissions of the Applicant, I have observed that he has pleaded two reasons as follows; One is the issue of sickness on the part of the Advocate engaged to file the appeal and two online filing system challenges, i.e. delay in issuing the control number that made the appeal to be filed late. With regard to sickness of the advocate, the learned counsel for the Applicant has sworn an Affidavit supported with medical documentation proving that he fell sick at the time of engagement for the task. The same % has been attached as annex DS-2. I have gone through the Affidavit and its annextures DS-2 and observed that indeed the learned counsel for the Applicant fell sick immediately after his engagement and was admitted at Kibugumo Health centre on the 24th day of September and discharged on the 28th day of September.

This medical report has not been medically objected to by the Respondent in her Counter Affidavit and more so she did not file any submissions to counter the written submissions in chief. It is therefore, as good as she never appeared in court to defend her case. Further, the Applicant has stated in his application that within two days of his Advocate being discharged, he attempted to file the appeal however the same- was not admitted due lack of a control number prompting the matter'to be delayed for some days In this regard I hold the view that in determining Applications of this nature particular regard to each individual circumstance should be considered. With regard to the issue of sickness, I agree with the Applicant that, sickness if proved can be a good ground for extension of time. Since the % issue of sickness has not been controverted medically then I am convinced that the same has contributed to the delay in filing the appeal. Therefore, the delay was due to sickness which is inexplicable and excusable as stated in the case of John Daud Kashekya vs The AG , Civl Application no 107 of 2012 CAT(unreported), whereby the CAT held that; Sickness is a condition which is experienced by a person who is sick. It is not a shared experience. Except for children who are yet in a position to express their feeling, it is the stick person who can express his/her condition whether

he/ she has the strength to move, work and do whatever kind of work he is required to do. See also the position expressed in the case of FINCA TANZANIA LIMlltD v HASSAN LOLILA, CIVIL APPLICATION NO.165/18 OF 2021 COURT OF APPEAL (reported on Tanzilii.com) cited by the Applicant above where it was stated that: "It is common ground that health matters in most cases are not the choice of human being; cannot be shelved and nor can anyone be hold to blame when they strike. The Applicant's failure to appear on the date of hearing of the application was prevented by % sickness which in my view is sufficient cause...." ♦ Guided by the above authorities, it is clear that sickness can be used as a ground for extension of time if proved. In this matter the Applicant has li managed to prove that the delay was due to his Advocate's sickness. Annex Ds-2 to the Affidavit, is clear that the learned counsel did in fact fell sick and was admitted on those crucial days of filing the appeal. Regarding the issue of accounting for each day of delay, I have perused the records and that the Applicant has been able to account for each day of delay as required by the procedures. He has submitted before this court that the delay has been compounded by the delay in issuance of the control number. This court has observed that indeed, the Judgment of the District “Court, was delivered on 14/08/2024,

therefore, counting from 15/08/2024, the forty-five days to appeal ended on 28/09/2024, which was a Saturday. Since the deadline fell on Saturday 28/09/2024 and the following date. i.e. 29/09/2024 was a Sunday, whereby court's business is normally closed, then deadline to file the appeal shifted to the next working day which was Monday 30/09/2024. See section 19(6) of the Law of Limitation Act, Cap 89 RE 2019. I have further observed that the appeal was filed in the e-cms on 30th September 2024 as per annex DS-3 and was indeed admitted in the morning of 01/10/2024 and the control number was issued accordingly and that, going by the record and the submissions of the Applicant, it is indeed true that if the Applicant had persisted to pay for the appeal on the 1st of October 2024 and file it, he would have been out of time for one day and the appeal could have been found to be out of time. I have also satisfied myself that, having noticed the challenge, the Applicant promptly filed this Application within a period of one day from the deadline of filing the appeal. The Application was submitted on 1st October 2024 and admitted on the same date, following issuance of the control number on 1st October 2024 and payment thereof. Therefore, he was - diligent in' pursuing the appeal he intended to prosecute and was thus not thus negligent. The Applicant therefore complied with the

requirements stipulated in the case of Lyamuya construction (supra) by accounting for all the period of delay by filing this Application promptly hence the delay'has not been inordinate and lastly, he has shown diligence and not apathy, negligence or sloppiness in the prosecution of the appeal he intends to file. Therefore, based on the said reasons, I proceed to grant an extension of time of 30 days to the Applicant to file his intended appeal. The stipulated days shall run from the date of this order. I grant no order for costs. Dated at Temeke this 31st Day of January 2025 S.D. MWAIPOPO

JUDGE 31/01/2025