geita town council vs ms home africa investmant corporation ltd 2022 tzhccomd 33 28 february 2022

IN THE HIGH COURT OF UNITED REPUBLIC OF THE TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM MISC.COMMERCIAL APPLICATION NO.148 OF 2021 GEITATOWN COUNCIL.................................... APPLICANT VERSUS '’’XK & M/S HOME AFRICA INVESTMENT JK CORPORATION LTD............................... .^DEFENDANT 0 r Last Order: 09/02/2022 Judgment: 28/02/2022 NANGELA, J:. Z , 7 The Applicant Herein brought this application under section 1 4 ( l\ o f the^Law of Limitation Act, Cap.89 R.E and\Order^LIII Rule 2 of the Civil Procedure Code, Cp.33 R.Ex<20-f9. The application is by way of a chamber summons supported with an affidavit of Mr Ponziano Lukosi, a Principal State Attorney working in the office of the Solicitor General, and Festo Nyakunga, a law secretary working for the Solicitor General. Before I delve into the gist of this application, let me state that, the Court proceeded ex-parte against the Page 1 of 5 Respondent. The reasons for that are simple. The Respondent did not appear before this Court, and, despite there being efforts to publish the summons procuring the Respondent's presence in Court, the Respondent did not appear before this Court. It is on that basis that, on the 9th February an order to proceed ex-parte was sought and granted. In this application, the Applicant is seeking^for the following orders of the Court, that: 1. this honourable Court Bekpleased r* to extend timexwithin“which^o file X an award by\an arbitrator, Dr. Kumbwa^W/ Salevtfi, dated 25th // f January 2021?\> 2. /Aq^other^grder(s) this Honourable Courtenay deem fit to grant. OnXheJday^when this matter was fixed for its hearingTxMs^Mercy Kyamba, learned State Attorney app^recHp Court representing the Applicant. She told this Courrtfiat, the Applicant is seeking for extension of time to file and register an arbitral award dated 25th January 2021 as the Applicant failed to register it timely. According to Ms Kyamba, the delay was occasioned by the Respondent who failed to pay the requisite fees in time and, that, by the time the Respondent did that, already time was against the Applicant. She further invited Page 2 of 5 the Court to consider the reasons divulged in the affidavits of Mr Ponziano Lukosi and Festo Nyakunga, filed in support of the chamber application and grant the prayers. I have looked at the affidavit of Mr Lukosi and Mr Nyakunga. According to those affidavits, the arbitrator pronounced the award on the 25th January 2021 and, that, on the 29th day of January 2021, the National Construction Council (NCC) informed the parties about thatxfactjand requested each party to pay part of its^agreed/ees. A letter from the NCC was attachedyto the^affidavit of Mr Lukosi as Annex.OSG-2. XXT Besides, according to<an invoice attached to the affidavit as Annexure .0SG-3)\the^Applicant did pay its f A y portion of the arbitrator's’rees on the 15th day of March 2021. Even soothe Applicant was not able, as Annexure OSG-4 indicates, to'dbtain a copy of the award from the NCC in tir^tfntiFflie 15th day of September 2021, when the/Xppfitant was informed, via SMS, that, the Respondent hadxpaidJts portion of the fees as well. As per the averments in the affidavit of Mr Lukosi, the award was accessed after a lapse of 6 (six) months, and, hence, necessitating this application. From the above submissions and averments in the supporting affidavits by the Applicant, the issue at hand is whether the prayers sought should be granted. This Page 3 of 5 application is based on section 14(1) of the Law of Limitation Act, Cap.89 R.E 2019. Essentially, section 14 (1) of the Law of Limitation Act, Cap.89 R.E 2019, gives the Court discretion to grant extension of time where there is a disclosure of sufficient cause regarding why the applicant was not able to act timely. Section 14 (1) of the Law of Limitation Act provides as follows: Notwithstanding the provisions' of this Act, the court may, for any M «.• A reasonable or sufficientjcause, extend the period Delimitation for the institution oran appeal or an applicati^^^t^jX than an application for .the execution of a ^ecree^and^an application for su^ctbxextension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application." Considering the disclosures made in the supporting affidavits, and taking into account the delays which the Applicant encountered when making follow-up with the NCC with a view to obtain a copy of the award, it is my finding that there delay was caused by a genuine and Page 4 of 5 sufficient cause to warrant granting of an order for extension of time as prayed by the Applicant. In view of the above, I hereby exercise the discretion vested in this Court and grant the prayers sought and order as follows: 1. The Applicant is given 21 days as an extended period within which to act on the Award in question. 2. I make no orders as to costs. It is so ordered. DATED at DAR-ES-SALAAM ON THIS 28™ DAY OF FEBRUARY, 2022 Page 5 of 5