JULIUS MIBURO KABIRIGI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA l CIVIL APPLICATION NO. 10106 OF 2024 (Arising from Civil Appeal No. 10 of 2023, Ngara District Court, original Probate Cause No.19 of 2019 Nyamiaga Primary Court) JULIUS MIBURO KABIRIGI.............................................. APPLICANT VERSUS NGEZE HERMAN KABIRIGI...................... RESPONDENT RULING 02 & 12/12/2024 KIWONDE, J.: The applicant, Julius Miburo Kabirigi filed an application by way of chamber summons supported by an affidavit of Christian Byamungu, his counsel, praying for the following court orders: i. That the applicant be granted leave to file an appeal out of time in respect of the judgment in Civil Appeal No. 10 of 2023 of the District Court of Ngara delivered on 26/07/2024 before Honourable E. M. Kavalo, RM. ii. Any other relief(s) this honourable court deems just and equitable to grant. The respondent filed a counter affidavit refuting some of the facts deponed in the affidavit supporting the application. Thus, the application became ripe for hearing. However, by leave of this court, the application was argued by way of filing written submissions and both sides complied with the schedules. In his submissions in-chief, the counsel for the applicant argued that the applicant has delayed to appeal for 15 days counted from the date he was supplied with certified copy of the first appellate court, that is, on 5th August 2024. The period of 30 days expired on 3rd September 2024 while, this application was filed on 18th September 2024. The reasons for delay to appeal within time are threefold, one, illness on the part of the applicant, two, illegality on, the impugned decision of the first appellate court and three, that the respondent will not be prejudiced if this application will be granted. The counsel for the applicant argued that the applicant was sick due to associated health problems to his old age of 77 years. The counsel attached to the application the medical chit dated 29th July 2024. For that matter, the counsel for the applicant submitted that the applicant has accounted for each day of delay. There are case laws cited but I will not repeat thbm here, rather, I will discuss them. 2 Besides that, the counsel for the applicant raised the ground of illegality in the judgment of the first appellate court.' He argued that the trial court did not determine first the caveat (he called objection) raised by the applicant, instead, it proceeded to determine the matter on merits and the first appellate court did not bother to heed to this anomaly. The counsel for the applicant said if this application is allowed, it will have no prejudicial effect to the respondent. Therefore, the counsel prayed this court,to allow the application and grant an order extending time for the applicant to appeal out of time. In reply, the counsel for the respondent, Mr. Raymond Laurent submitted that the applicant has not accounted for each day of delay for the medical chit is of 29th July 2024, three days after the decision of the first appellate court but it is not indicated if the sickness persisted. He said a delay, even for a single day must be accounted for. He cited some case laws l for reference by this court and I do not find it necessary to repeat them here. As to the issue of illegality, the counsel for the respondent said this was not deponed in the affidavit. It has emerged in the course of submissions. He argued that the parties are bound by their proceedings, so, this 3 ground cannot be used as evidence. He asked the application be dismissed with cost. In rejoinder submissions, the counsel for the applicant said even the cited case law support that the ground of illegality can be added even if it is t not deponed in the affidavit and that the respondent will not be prejudiced if the application will be allowed. From the pleadings and the written submissions, the main issue for determination is whether there is sufficient cause shown for the court to grant an order extending time for the applicant to appeal out of time. It is trite law that the court can grant an order extending time within t which the applicant can appeal out of time if there is sufficient cause shown. In law, a good or sufficient reason depends on the circumstances of each case. However, in Lyamuya Constructions Company Ltd Versus Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010 [2011] TZCA 4 (3rd October 2011), Mohamed Salum Nahdi Versus Elizabeth Jeremiah, Civil Application No. 474/01 of 2016 [2017] TZCA 338 (8th June 2017) and Wambele Mtumwa Shahame Versus Mohamed Hamis, Civil Reference No.8 of 2016 [2016] TZCA 898 (12th October 2016), all are 4 published in TanzLII, there are some factors the court considers before granting extension of time. They include; one, length of time of delay, two, reasons for delay, three, if the applicant was not diligent to pursue his rights, four, whether grant of the order extending period will prejudice the respondent and five, if the applicant can account for each day of delay, six, whether there is arguable case such as a point of law or illegality apparent on the face of record. , Upon going through the written submissions and considering the cited case laws, I opt to begin my deliberations'with the ground of illegality. I concur with the counsel for the applicant that illegality apparent on the face of record is a good ground for extension of time for the applicant to appeal out of time. However, the reasons for delay have to be deponed in the affidavit. This is because affidavit is evidence in lieu of oral accounts. This means that if the fact is not deponed in the affidavit, this court cannot deal with it. In Denis T. Mkasa Versus Farida Hamza and others, Civil Application No.407 of 2020 [2022] TZCA 801 (8th December 2022) TanzLII, the Court of Appeal of Tanzania stated that the reasons for delay must be stated in an affidavit supporting the application and not in the written submissions. Explanation for the delay given by the applicant in the applicant's written submissions counts nothing, it is an l afterthought and unreliable evidence which cannot be acted upon. 5 In this application, the ground of illegality surfaced in the course of filing written submissions but not deponed in the affidavit supporting this application. For that matter, it cannot be acted upon. The remaining reason for delay deponed in the affidavit is the applicant's illness. It is argued that he is extremely old aged 77 years old and so, his age is associated with various health problems. This is supported by the medical chit dated 29th July 2024. But in that medical chit, despite the applicant having been diagnosed with such health handicapness, it is shown that he used to attend monthly t clinic for medical follow up, medical review and he wanted to seek referral to other high medical centres. So, it is not established if he was persistently ill to the extent of failure to appeal for all of the period until he delayed for those 15 days from 4th September 2024 to 17th September 2024 to appeal to this court. The applicant had to state if he was bed­ ridden or sick to the extent that he could not do the needful. It has not been established when the applicant specifically recovered or got relief from his illness to enable him file the application on 18th September 2024. When the law put a requirement that the applicant must account for each day of delay, it means the applicant has to give reason on each day why he could not do the needful. 6 For that matter, there is no sufficient cause proved for this court to grant an order for extension of time to appeal out of time. The application lacks merit and it is hereby dismissed with cost. Dated at Bukoba this 12th December 2024. F. H. KI WON DE JUDGE 12/12/2024 Court: Ruling is delivered in chamber in the presence of Mr. Christian Byamungu counsel for the applicant, Mr. Raymond Laurent counsel for the respondent and Grace Mutoka (RMA) this 12th December 2024 and the right of appeal is explained. F. H. K! ONDE JUDGE 12/12/2024 7