HAMAD OMARI MWAREKWA VS THE DIOCESE OF MBULU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA MISC. CIVIL APPLICATION NO. 24260 OF 2024 (Civil appeal No. 30 of 2022 in the High Court of Tanzania at Arusha) HAMAD OMARI MWAREKWA.................................................. APPLICANT VERSUS THE REGISTERED TRUSTEE OF DIOCES OF M BULU.............RESPONDENT RULING 29/11 & 18/02/2024 NDUMBARO, J Before this court, is an application for an extension of time preferred by the applicant under section 11 (1) of the Appellate Jurisdiction Act, Cap 141 R.E 2019. The applicant is seeking an order to extend the time to file a notice of the intention to appeal and leave to the Court of Appeal of Tanzania. The application is further supported by an affidavit, duly sworn by the applicant's counsel Christin Y. Kimale. However, the respondent has resisted the application through the counter affidavit duly sworn by the respondent's counsel Sr. Mesereti Melese Nnbere. When the matter was called for hearing, the parties prayed to dispose the application by way of written submission, and the prayer was granted. The applicant enjoyed the service of Advocate Christin Y. Kimale and the respondent enjoyed the service of Salvatory Mosha. It was the submission of the applicant that, he was dissatisfied with the decision of the High Court of Tanzania Civil Appeal No. 30 of 2022, delivered on 14 December 2023, and wanted to file a notice of appeal and leave to appeal to the Court of appeal but he was out of time. The reason for the delay was technical, as the matter was trucked out on reasons that it was incompetent. He filed this application three days after the matter was trucked out. Hence pray this court to grant extension. In reply, the respondent submitted that the applicant did not provide sufficient reasons for the delay, and the applicant acted negligently with no diligence and failed to establish the alleged technical delay, no good cause of delay was given. Argued, the applicant raised the issue of illegality but the said was not established on the face of it. Therefore the application is baseless and be dismissed. Supporting the argument cited in the case of Lazaro Bajuta and others Vs Daniel Awet Tewa Case No.16778 (2023) HC ARUSHA. Further argued, the application is an omnibus containing two unrelated applications that is, an application for leave and notice which makes it defective. Having gone through the application and the rival submissions of the parties' counsel, next for consideration by this court is whether the applicant has advanced sufficient reasons to warrant this court to grant an extension of time as sought. The decision on which the applicant intended to file a notice of appeal was pronounced on 14 December 2023 thereafter the applicant issued notice to appeal on application No. 3 of 2024, which was struck out on 24 September 2024 and three days after on 27 September 2024, the applicant filed this application. As a matter of general principle whether to grant or refuse an application for extension of time is entirely in the discretion of the Court. But that discretion is judicial and so it must be exercised according to the rules of reason and justice and the overriding consideration is that there must be sufficient cause for doing so. See Yusuph Same & Another vs. Hadija Yusuph, Civil Appeal No. 1 of 2002 (Unreported). Applications of this nature are also decided depending on the circumstances of each case as there are no hard or fast rules on what amounts to sufficient cause. However, from a number of decided cases, a number of factors have to be taken into consideration including whether or not the application has been brought promptly, the length of the delay, the degree of prejudice to the respondent and the legality of the decision intended to be challenged. In the case of Mbogo Vs. Shah [1968] EA the defunct Court of Appeal for Eastern Africa held thus: - "All relevant factors must be taken into account in deciding how to exercise the discretion to extend time. These factors include the length o f the delay, the reason for the delay, whether there is an arguable case on the appeal and the degree o fprejudice to the defendant if time is extended." From the records, the applicants have demonstrated that their delay is a technical delay taking into consideration that the previous notice of appeal was filed within time but the same was struck out following their being incompetent before the court. In the instant case in which an extension of time is sought Civil Appeal No. 30 of 2022, the judgment was issued on 14/12/2023, and the appellant filed the notice of intention to appeal on 8/01/2023 whereby it was stuck out for being incompetent, this is to say the first application was filed within the time. The respondent refuted the grant of this application on the basis that the applicant did not establish good cause for delay, alleged illegality was not established and the application is omnibus to the effect that the matter of leave and notice was in a single application which makes it fatal, further, the respondent argued the applicants could not be salvaged on this application on the reasons that the applicant acted negligently without a decree of diligence pleading wrong application which led to stuck-out. Argued further lack of diligence does not constitute a good cause for delay on the reasons of technical delay. According to him, for one to be covered by the principle of technical delay he must have been pursuing his right diligently, but the applicant acted negligently and the matter was struck out for being incompetent. Perhaps, I should start my discussion by defining what is a technical delay. The answer to this question is found in a very famous case of Fortunatus Masha vs Wiliam Shija & another [1997] TLR 154. For a better appreciation of the definition of a technical delay, part of the holding is reproduced hereunder; 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 the circumstances, the negligence if any refers to the filing o f an incompetent appeal, not the delay in filing it The filing o f an incompetent appeal having been duly penalized by striking it out, the same cannot be used to determine the timeousness o f applying for filing the fresh appeal." ^Emphasize is mine). As already explained above, it is an undisputed fact by both sides that the previous notice of appeal was filed by the applicants on time but the same was struck out. I have taken into consideration the submission of Mr Salvatory Mosha, advocate for the respondent that, the delay, in this case, is not a technical delay due to the reasons that, the original notice of appeal was struck out since the applicant failed to act diligently. With due respect, I find that the learned counsel is making confusion about the reason that made the notice of appeal to be struck out and the fact that the notice of appeal was filed within time. From the above definition of what is a technical delay, the Court of Appeal of Tanzania clearly stated that the negligence if any, refers to the filing o f an incompetent appeal, not the delay in filing it. What can be deduced from this holding is that whatever negligence the applicants had in filling their appeal within time, the same does not affect the fact that the notice of appeal was filed within time. In the premises, I am satisfied that the applicants' delay is technical, and not an actual delay. Next to be considered is whether the applicant has given an account of each day of delay. It is the testimony of the applicant after the matter was struck out. I have also observed the time spent from when the notice of appeal was struck out to the time of filing this application it is almost three days, that is from 24th September 2024 where it was stuck out to 27th September 2024, where the applicant lodged this application. It is my view that the applicant acted promptly. On the claim that the application is omnibus, this matter cannot detain me much considering that, the leave requirement to the Court of Appeal is overtaken by events. I am justified that the applicants have sufficiently explained the reasons for the delay in filing a fresh notice of appeal to the Court of Appeal of Tanzania. Accordingly, this application is hereby granted. ■' \ the applicants shpll file their notice of appeal to the Court of Appeal of T^ ^ ^ ■ '$ 3 thin/fourt|en (14) days from the pronouncement of this ruling. D. D r^ ^ lB A R O JUDGE 18/02/2025