GOODLUCK YUDA SHAYO FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF DAR ES SALAAM

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 16503 OF 2024 GOODLUCK YUDA SHAYO .......................................................…. APPLICANT

VERSUS ALOYCE GABRIEL SHAYO …………………..…………………..…… RESPONDENT (Arising from the judgment of the District Court of Kinondoni at Kinondoni in Civil Appeal No. 78 of 2022)

RULING 10th and 10th March 2025 KISANYA, J.: This Court is called upon to grant the applicant leave to file an appeal out of time. The application is made under section 25(1)(b) of the Magistrates' Courts Act [Cap. 11 R.E. 2019] and Rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Court) Rules, G.N. No. 312 of 1964. It is supported by an affidavit sworn by the applicant, Goodluck Yuda Shayo. The affidavit discloses that the decision being challenged was delivered on 14th November 2023 by the District Court of Kinodoni at Kinondoni in Civil Appeal No. 78 of 2022. A brief background leading to this application, as reflected in the supporting affidavit and annexed documents, shows that, four days after 1 the delivery of the impugned judgment, the applicant’s counsel wrote a letter requesting a copy of the judgment. The letter was received by the District Court on 20th December 2023. However, the copy of the judgment was not made available for collection until 22nd December 2023, after the statutory period for filing an appeal had lapsed. Following this delay, the applicant filed Misc. Civil Application No. 819 of 2024 before this Court, requesting an extension of time to appeal. However, this Court struck out the application on 4th July 2024, as the applicant did not attach the petition of appeal or state the grounds of objection as required by the

applicable legal provisions. Not discouraged by the earlier setback, the applicant has now submitted the current application, requesting an extension of time to file the appeal. Service to the respondent was effected through a publication in the Mwananchi newspaper dated 23rd October 2024. However, the respondent neither responded nor indicated any intention to participate in the proceedings. As a result, the Court ordered the matter to proceed ex-parte. Mr. John Maro, learned Advocate, represented the applicant when the matter was called for ex-parte hearing today. In support of the application, Mr. Maro submitted that the basis for seeking an extension of time is the delay in obtaining the copy of the 2 judgment and technical delay. He stated that although the impugned judgment was delivered on 14th November 2023, the applicant promptly requested a copy on 18th November 2023 but only received it on 22nd December 2023, after the statutory period for filing an appeal had expired. Immediately upon receipt, the applicant filed Civil Application No. 819 of 2014 before this Court, seeking an extension of time. However, the application was struck out for being incompetent, necessitating the filing of the present application without undue delay. The learned counsel cited the case of Philemon Mang'ehe t/a Bukine Traders Vs Gesbo Hebron Bajut, Civil Appeal No. 374/02 of 2022

(unreported), where the Court of Appeal held that an extension of time can only be granted if the applicant establishes good cause. He also referred to Fortunatus Masha vs. William Shija and Another [1997] TLR 154, where the Court made a distinction between actual and technical delay, explaining that technical delay occurs when an application is filed within time but is later struck out for procedural reasons. He argued that the delay in the present case falls under technical delay, as the initial application was lodged without undue delay but was later found incompetent. 3 In conclusion, Mr. Maro contended that the respondent would not suffer any prejudice if the application were granted. He, therefore, urged the Court to exercise its discretion in favor of the applicant and extend the time for filing an appeal. Upon examining the chamber summons, the supporting affidavit, and the submissions made by the applicant’s counsel, the central issue for my consideration is whether the application is justifiable. As correctly submitted by Mr. Maro, Section 25(1)(b) of the Magistrates' Courts Act (supra) provides that an appeal against a decision or order of the District Court, when acting in its appellate jurisdiction, must be filed with the High Court within thirty days after the date of the decision or order. However, the High Court retains discretion to extend this period, either

before or after its expiry. In accordance with Rule 3 of G.N. No. 312 of 1964, an extension of time must be sought through a written application stating the reasons for the delay. Therefore, it is only after reviewing the application and being satisfied that there is a justified reason for the delay that the High Court exercises its discretion to extend the time. In light of the foregoing, and considering that the impugned judgment was delivered on 14th November 2023, the time for the applicant to file his appeal lapsed on 13th December 2023. The record shows that the 4 present application was submitted to this Court on 10th July 2024, indicating a delay of around seven months. Consequently, the key question to resolve is whether the applicant has offered sufficient reasons to justify this delay. In his supporting affidavit, the applicant has outlined the delay in obtaining the copy of the judgment and a technical delay as the primary reasons or grounds for his failure to file the appeal within the legally prescribed time. Starting with the delay in receiving the copy of the impugned judgment, I am mindful of the settled legal position that it is not a statutory requirement for a petition of appeal against a decision of the District Court, when exercising its appellate jurisdiction, to be accompanied by a copy of the judgment or order. However, I have considered view that an

appellant can only formulate well-founded grounds of appeal after reviewing the judgment or order in question. In such circumstances, I hold the view that the failure to provide the parties with a copy of the judgment may constitute a reasonable justification for granting an extension of time. In this case, the applicant submitted a request for a copy of the judgment on 20th November 2023. Nevertheless, it was not until 22nd December 2023 that the District Court certified the judgment, making it 5 available for collection from that date. While the applicant has not indicated the precise date when he was notified that the judgment was ready or when he collected it, he has established that the copy was available only after the statutory period for filing an appeal had expired. In my opinion, this constitutes a reasonable justification for the delay during the relevant period. Moving to the second ground on technical delay, case law, including Fortunatus Masha (supra), which was cited by Mr. Maro, consistently supports the principle that time spent by a party in good faith pursuing a matter that is later found to be incompetent constitutes excusable delay. This position underscores the rationale that a litigant who has taken timely steps to seek legal redress but encounters procedural setbacks should not be unduly penalized. The applicant has explained that his prior

application for an extension of time was dismissed by this Court on 4th July 2024. Although the filing date of that application was not explicitly mentioned, the Court's records show it was filed on 15th January 2024, which was 23 days after the District Court certified the copy of impugned judgment and made it available for collection. Consistent with established legal principles, I am satisfied that the applicant has properly accounted for the delay up until 4th July 2024, when 6 his previous application was dismissed. Furthermore, the fact that this current application was filed only six days later, on 11th July 2024, reflects the applicant’s promptness and diligence in pursuing the challenge without undue delay. Based on the foregoing considerations, I find this to be a suitable case for the Court to exercise its discretionary power to grant an extension of time for filing the appeal. As such, the application is hereby granted, and the applicant is given thirty (30) days from the date hereof to file the appeal. Costs shall follow the event of the appeal. It is so ordered. DATED at DAR ES SALAAM this 10th day of March 2025. S.E. KISANYA

JUDGE Delivered virtually this 10th day of March 2025, in attendance of Mr. John Maro, learned Advocate for the applicant and Ms. Zawadi-RMA, and in the absence of the respondent. S.E. KISANYA

JUDGE 10/03/2023 7