edina john mgeni vs national bank of commerce limited another 2022 tzhccomd 192 28 july 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 23 OF 2022 (Arising from Commercial Case No 90 of 2013)

BETWEEN EDINA JOHN MGENI alias JESCA DINAH JOHN......APPLICANT Versus NATIONAL BANK OF COMMERCE LIMITED.......1st RESPONDENT MBEYA CEMENT COMPANY LIMITED..............2nd RESPONDENT Date of last order: 5th July 2022 Date of Ruling: 28th July 2022

RULING MKEHA, J. The applicant herein is moving the court for extension of time within which to file notice of appeal and leave to appeal out of time. She seeks to challenge decision of this court in Commercial Case No. 90 of 2013 which was delivered on 23rd July 2013. The appalication is made under section 11(1) of the Appellate Jurisdiction Act. 1| Page I On the hearing date, the applicant appeared in person. On the other hand, Mr. Tazany Mwaiteleke learned advocate represented the 1st respondent. The 2nd respondent did not appear to defend the application, despite service. The applicant's affidavit indicates in paragraphs 1 to 10 that, after Commercial Case No. 90 of 2013 had been decided on 23 July 2018, the applicant's advocate filed an application for review against the said decision. That, the said application for review was dismissed as the proper course ought to have been preference of an appeal instead of the application for review. Following the said decision of the court, that is when the applicant came to know fate of her case, i.e Commercial Case No. 90 of 2013.Although the application for review was dismissed on 27th February 2020, it was untill 1st March 2020, when the applicant took a step of filing the present application. During hearing of the application, the applicant who appeared in person, told the court that, the other reason for delay in taking

essential steps was the fact that she was also sick at the time when she ought to have taken steps. This reason has no any reflection in the affidavit supporting the application. 2| Page r Mr. Mwaiteleke learned advoacate submitted in reply that, the applicant's affidavit contained no reasons as to why she delayed taking action for two years even after the application for review had been decided. The learned advocate condemned the applicant for negligence. The only issue for determination is whether there are sufficient reasons for the delay. From the applicant's own affidavit it would appear that since when the applicant instructed her advocate for representation in 2018, in view of challenging this court's decision in Commercial Case No. 90 of 2013, she never heard of the advoacate or her case untill after 27th February 2020 when the application for review was dismissed. That is not all. Whereas the inadvertent application for review was dismissed on 27th February 2020, it was untill 1st March 2022, when the present application was filed. The affidavit supporting this application contains no explanation for the two years' delay. Not even a single paragraph. Mr. Mwaiteleke learned advocate has invited me to hold that, there are no sufficient reasons for the delay. I will shortly respond to the said invitation. In the case of BUSHIRI HASSAN Vs LATIFA LUKIO MASHAYO, CIVIL

APPLICATION NO.192 OF 2016,the Court of Appeal held that, delay of even a single day has to be accounted for otherwise there 3| Page would beno point of having rules prescribing periods within which certain steps have to be taken. Regarding inaction of those who engage advocates without making close follow ups of what is actually going on in respect of their cases, the Court of Appeal has recently held in LIM HAN YUNG & ANOTHER Vs LUCY TRESEAS KRISTENSEN,CIVIL APPEAL NO 219 OF 2019 as hereunder: "/! party to a case who engages the services of an advocate, has a duty to closely follow up the progress and status of his case. A party who dumps his case to an advocate and does not make any follow ups of his case, cannot be heard complaining that he did not know and was not informed by his advocate the progress and status of his case " For the applicant's failure to make close follow ups of the progress and status of her case,coupled with her failure to account for every single day of delay as demostrated hereinabove, I accept Mr. Mwaiteleke's invitation and thereby hold that, the applicant has failed to give sufficient reasons for the delay. Concequently, the application is dismissed. The applicant is condemned to pay costs of the application to the 1st respondent. It is so ordered. 4| Page DATED at DAR ES SALAAM this 28th day of July 2022.

JUDGE 28/07/2022 Court: Ruling is delivered in the presence of the applicant in person and Ms. Christabella Madembwe learned advocate for the 1st respondent.

JUDGE 28/07/2022 5| Page