FINCA TANZANIA MWANZA BRANCH

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. CIVIL APPLICATION NO. 8620 OF 2023 (Arising from the judgment of the High Court of Tanzania at Mwanza in Civil Appeal No. 48 of 2023) FINCA TANZANIA MWANZA BRANCH………………………..……….1ST APPLICANT NDERA AUCTION MART & GENERAL BROKERS……………………2ND APPLICANT VERSUS MUSSA KAZUNGU SHIGULA……..…………………………………..1ST RESPONDENT CHARLES MARWA NYAMASIRIRI………………………………….2ND RESPONDENT RULING 13 June & 13 June, 2024. th th Kilekamajenga, J. The instant application seeks an extension of time to file a notice to approach the Court of Appeal of Tanzania. The application is made under section 11(1) of the Appellate Jurisdiction Act, Cap. 141 RE 2019 and Section 95 and Order XLIII Rule 2 of the Civil Procedure Code Cap. 33 RE 2019 and any other enabling provisions of the law. The application is supported by an affidavit of the applicant’s advocate, Mr. Stephen Charles Kaswahili. In response, the respondents filed counter affidavits resisting the application. The hearing of the application before this court brought the attendance of the learned Advocate, Mr. John Philip who appeared for the applicants. The counsel addressed on the reason for the delay that, the applicant was aggrieved with the decision of the High Court in Land Appeal No. 48 of 2023 which was delivered on 16th February 2024. Thereafter, the applicants 1 lodged a notice of appeal in the system of the judiciary on 27th February 2024 through an account with the user name Willbard Kilenzi. The notice was properly lodged but its status seemed to have been forwarded to the accountant for billing. After a physical follow-up, on 14th March 2024, the applicants wrote a letter to the Deputy Registrar seeking to file a notice of appeal manually. The letter’s reply was delayed until on 3rd April 2024. The reply from the Deputy Registrar simply informed the applicants that the system error was debugged. Soon after, the applicants’ advocate did not apply for an extension of time because he was on the way to Tabora. After his return on 04th April 2024, the counsel prepared the instant application which was filed on 06th April 2024. Hence, the delay in filing the notice of Appeal was not due to the laxity of the advocate but to the system error. He prayed for the application to be allowed. In response, the respondents’ counsel, Mr. Dionis Mwasi prayed for the adoption of the respondents’ counter affidavits. He further argued that, the notice of appeal is always filed within 30 days. On 27th February 2024, only 11 days had elapsed since the decision of this court, hence the applicants had time to file the notice. Until on 14th March 2024, when the applicants wrote the letter to the Deputy Registrar, only 30 days had not elapsed. In this application, the applicants have not stated why this application was not filed immediately after the expiry of statutory time to file the notice. In his view, the advocate’s travel to Tabora has 2 nothing to do with the delay because he is not the only advocate in his chamber. He stressed further that, the delay was not technical but due to the advocate's negligence. He cemented his argument with the case Lyamuya Construction Company Limited v. Board of Trustees, Civil Application No. 02 of 2010, CAT at Arusha. He urged the court to dismiss the application with costs. When rejoining, the applicants’ advocate did not raise any substantial argument worth noting. In determining this application, the pertinent issue is whether the applicant has adduced sufficient reason to warrant this court to exercise its judicial discretion to extend the time for the applicant to file notice to the Court of Appeal. It is an established principle that the decision to grant an order of extension of time is within the court’s discretion. However, such discretion should be exercised judiciously and supported by logical, valid, authentic and sound reasoning given by the party seeking an extension of time. This principle is stated in a plethora of cases as it was held in the case of Ally Mohamed Mkupa vs Republic, Criminal Application No. 93/07 of 2019 where the Court of Appeal held that; “…the Court has powers to extend time for doing of any act that a party has failed to do within the prescribed time. The exercise of that power is discretionary which has to be exercised judiciously. Acting judiciously is to act for good cause or sufficient reason.” 3 See, also the case of Tanzania Bureau of Standards vs Anitha Kavera Maro, Civil Application No. 60/18 of 2017. In this application, the applicants alleged technical delay as the reason to warrant extension of time. The counsel argued that there was an error in producing control number to allow the applicants pay for the application (paragraph 5 of the affidavit). That, after receiving the reply from Deputy Registrar, on 3rd April 2024, the applicant’s advocate could not apply as he travelled to Tabora. Hence the application was filed on 5th April, 2024. In extending time, the court must satisfy itself that the applicant has accounted for each day of delay. See the cases of Tanzania Fish Processors Limited v. Eusto K Ntagalinda, Civil Application No 41/08 of 2018, CAT at Mwanza, Dar es Salam City Council v. Group Security Co. Ltd, Civil Application No 234 of 2015, CAT at DSM and Juma Shomari vs Kabwere Mambo, Civil Application No 330/17 of 2020. From the facts of this case, I cannot condemn the applicants for the delay because they waited for the control number and the system error was beyond their control. Therefore, the delay was a technical one as it was not in applicants’ power. The applicants’ affidavit shows that they obtained the control number on 3rd April 2024 and he filed this instant application on 5th April 2024. It is in my considered view that the applicants have sufficient cause for the delay. In 4 upshot, this application is allowed, the applicant should file his notice within 21 days from the date of this order. No order as to costs. Order accordingly. DATED at Mwanza this 13th Day of June 2024. Ntemi N. Kilekamajenga. JUDGE 13/06/2024 Court: Ruling delivered this 13th Day of June 2024 in the presence of the counsel for the applicants, John Philip and the counsel for the respondents, Mr. Dionis Mwasi. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 13/06/2024 5 6