MISC NO 31963 OF 2024 GERVAS JEREMIAH VRS SBC TANZANIA LIMITED 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION AT PAR-ES-SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 31963 OF 2024 CASE REFERENCE NO. 202412191000031963

BETWEEN GERVAS JEREM IA H .............................................................. APPLICANT

VERSUS SBC TANZANIA LIM ITED................................................RESPONDENT

RULING Date of last Order: 26/ 02/2025 Date of Ruling: 28/ 03/2025 MLYAMBINA, J. The ruling herein is in respect of an application for extension of time to file notice of appeal to the Court of Appeal. The application was supported by the affidavit deponed by the Applicant himself. The application was vehemently challenged by the Respondent through the counter affidavit sworn by Mr. Patric David, the Respondent's Counsel. The application was argued orally. The Applicant appeared in person, unrepresented. On the other side, Mr. Haron Oyugi, learned Counsel appeared for the Respondent. The Applicant submitted that his Appeal was strike out on 12/08/2024 by the Court of Appeal on the reason that the letter requesting for proceedings before this Court was not served to the Respondent. That, the case originated from 2002. In order to get his l rights, he thought of filing an application before this Court. It was an application for extension of time to appeal. That was Misc. Application 25860 o f2024. It was strike out by Hon. Judge Mganga on 31/10/2025. He therefore, filed this application on 19/12/2025. He stated that when the matter was struck out by this Court, he was hustling looking for an Advocate to prepare pleadings for him. He therefore prayed for this application to be granted. In response, Counsel Oyugi strongly objected the application. In his submission, he adopted the

counter affidavit of Patrick David filed on 30/12/2024 to form part of his submission. The reason for objecting the application is that the Applicant lied in his affidavit that the letter requesting proceedings was lost and he has the lost report but the affidavit in Misc. Application No. 25860 the Applicant deponed that such letter was misplaced. He was of the view that the loss and misplacement are two different things. The second reason, the Applicant has not deponed and accounted for over 49 delayed days. The initial application, that is Misc. Application No. 25860 was strike out on 31/10/2024 while this application was filed on 19/12/2024. It is more than 49 days. The Applicant failed to account for each day of delay. In cases of this nature, the Applicant is supposed to account for each day o f delay. The third reason for objecting the application is that the Respondent will suffer irreparable loss than the Applicant. That, the Respondent has already paid Advocates to represent her in this case. It brings financial harm to the Respondent. The fourth reason is that the Applicant has not adduced sufficient reason for this Court to grant the application. In his affidavit the Applicant never mentioned the irregularities. He was of the view that the mere mention of irregularities is not enough. What is impugned here is not the decision of the Labour Court. This is an

application for extension of time. Lastly, Counsel Oyugi submitted that, chances of success for the application to be granted is not a ground for extension of time, he therefore urged the Court not to grant this application. In rejoinder, the Applicant submitted that the issue of misplacement and loss is the same. When one thing is misplaced, upon finding without success, it is already a loss. Therefore, misplacement leads to loss. After being satisfied that the misplaced document could not be traced, he confirmed it was lost. He also agreed that 49 passed where the major reason was to find an advocate because financially, he could not hire an advocate. He reiterated that his is a matter of 2002. It is him who is getting much financial loss than the employer. The employer is making production while he is not producing anything. To him, one day is like a year. He firmly stated that the delay affects him much than the employer. He therefore urged the Court to grant the application. From the afore parties' submissions, the issue to be determined is; whether the Applicant has adduced sufficient reason for the grant o f extension sought. Before the Court is an application for extension of time within which to file the notice of appeal. An application of this nature is governed by Rule 83 o f the Court o f Appeal Rules, GN. No. 368 o f 2009 (herein Court o f Appeal Rules) which

requires a person aggrieved by the decision of the High Court to file notice of appeal in the High Court where the decision was delivered. The said notice to be filed within thirty days of the date of the decision. The relevant provision provides as follows: 83. -(1) Any person who desires to appeal to the Court shall lodge a written notice in duplicate with the Registrar of the High Court. (2) Every notice shall, subject to the provisions of Rules 91 and 93, be so lodged within thirty days of the date of the decision against which it is desired to appeall. In the application at hand, the impugned decision was delivered on 07/05/2021. Thereafter, the Applicant dully filed the notice of appeal and appealed to the Court of Appeal. However, as stated herein, the appeal before the Court of Appeal was struck out on 12/08/2024. Subsequently, on 16/10/2024 the Applicant filed Misc. Application No. 25860 which was strike out on 31/10/2024 for being incompetent. Following that, the Applicant filed the present application on 19/12/2024. It is my view that the period from when the impugned decision was delivered to 31/10/2024 have been accounted for because the Applicant was in Court corridors prosecuting his rights. Such period is termed as long been established, technical delay, because the Applicant appealed in time but his appeal was struck out for technical issues. This is in line

with Court's decision in the case of Fortunatus Masha v. William Shija and Another [1997] T.L.R 154 where it was held that: I am satisfied that a distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal for one reason or another has been found to be incompetent and a fresh appeal has to be instituted.... in these circumstances an extension of time ought to be granted. The Applicant stated that from the period when Misc. Application No. 25860 which was strike out on 31/10/2024 to the time of filing the present application, he was looking for an advocate because financially, he could not hire one. The Respondent strongly disputed the application on four reasons. First, that the Applicant lied about the lost of the letter requesting for proceedings because in Misc. Application No. 25860 he said the letter was misplaced while herein, he deponed that the same was lost. It is my view that, such issue should not detain the Court. Before the Court of Appeal, it was decided already that the Applicant did not serve the Respondent the letter requesting for copy of proceedings. He was further penalized on the same. Thus, the Court cannot bring it back in this

application and dwell on the same. On the allegation that the Respondent will suffer loss in case this application will be granted, the Court considered the circumstances of each Party. The Applicant cannot be deprived the right to appeal on the expense incurred by the opponent party. As stated, the Applicant also has suffered loss because he has been prosecuting this application since 2022 . As to the ground that the Applicant has not adduced sufficient reason for the grant of this application, it is my view that the fact that the Applicant has been diligently pursuing this case, suffice for the grant of this application. After the impugned decision, he appealed to the Court of Appeal, even after the striking out of the application, he filed an application for extension of time. After the striking out of the previous application for extension, he then filed the present application. Those efforts have been considered and are sufficient for the grant of this application. Consequently, I find the Applicant has adduced sufficient cause for the grant of the application at hand. Thus, the application is hereby granted. The Applicant is granted fourteen days (14) leave to file in this Court the notice of appeal to the Court of Appeal. It is so ordered. Y.

JUDGE 28/03/2025 Ruling delivered and dated 28th March 2025 in the presence of the Applicant and in the absence of the Respondent.