jung hwan kim 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DA ES SALAAM SUB - REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 20453 OF 2024 (Arising from Taxation Cause No. 7373 of 2024, Origin Civil Case No. 28 of 2022) BETWEEN JUNG HWAN KIM .................................................................. 1ST APPLICANT SANG OK NAM ..................................................................... 2ND APPLICANT VERSUS THE REGISTERED TRUSTEES OF TANZANIA PRESBYrERiAN CHURCH ..................................... RESPONDENT RULING Date of Last Order: 31/10/2024 Date of Ruting: 04/12/2024 NGUNYALE, J. The applicant preferred an application for extension of time to file reference to examine the decision of a Taxing Master dated 21;t June 2024 in Taxation Cause No. 7373 of 2024. The application was preferred under Order 8(1) and (2) of the Advocates Remuneration Order, 2015 (G.N. No. 263 of 2015) and it was supported by an affidavit affirmed by Hamis A. Mbangwa. Upon being served with the application, the respondent disputed the application by way of counter affidavit duly sworn by Paschal Karnala. From the affidavit in support of the application it is observed that the reasons mentioned for the delay to file the reference in time was one, the delay to be supplied with the copy of ruling of the Taxing Master despite of writing a letter to ask for it and a reminder thereto as per annexure KIM-1 and KIM-2 and two, an anomaly with the case number where the ruling indicated the case was taxation cause no. 7373 while he, the applicant knew the case number to be taxation cause no.7623 as annexure KIM-3 and KIM-5. On the counter affidavit the respondent vehemently disputed the averments in the affidavit demanding strict proof thereof. At the hearing, hearing was by way of written submissions; the applicant submissions were filed by Mr. Hamis A. Mbangwa, advocate while the respondent’s submissions were filed by Mr. Paschal Kamala. Briefly the submissions are as follows: Submitting in support of the application, Mr. Mbangwa adopted his affidavit to form part of his submissions and reiterated that the Taxing Master delivered her ruling on 21;t June 2024 in favour of the respondent, being dissatisfied with it he wrote a letter to be supplied with the copy of ruling on 28th June 2024 and a reminder letter on 19th July 2024 which were not responded and on 26th July 2024 he was supplied with the ruling only to note that the case number in that ruling was different from the number which was written in the certificate as to folios and the summons to appear before the Taxing Master (annexure KIM-3 & KIM-5 respectively). Following the anomaly in the case number on 30th June 2024 he appeared before Hon. Mbadjo the taxing master who insisted that the correct number was 7373 as they appear in the ruling. He added that it was hard for him to note the anomaly of the case number before as the taxation cause was heard orally so he could not think of verifying the same. It was his prayer that the prayers in the chamber summons be granted . Rebutting the submissions in support of the application, Mr. Kamala adopted the contents of the counter affidavit and that, the application should not be granted on two reasons; 1;t, the applicant failed to adduce .sufficient cause for the grant of the orders sought as it has been discussed by the Court of Appeal in a number of cases to include Tanga Cement Company versus Jumanne D. Masangwa and Another, CIVIl ApplicatIon No. 6 of 2001 and Praygod Mbaga versus Government of Kenya Criminal Investigation Department and Another, Civil Reference No 4 of 2019. And the 2-d, that the applicant failed to account for each and every day of delay since he was supplied with the copy of ruling on 26th July 2024 but still, he filed this application on 22-d August 2024 without any justifiable reason. He cited the case of i-yarnuya Construction Company Limited V. Board of Registered Trustees of Young Women Christian Association of Tanzania, CIVil Application No. 2 of 2010, and the case of Interchick Company Limited versus Mwaitenda Ahobokile, Civil Application No 218 of 2016 Appreciating the rival submissions of the parties, this court is invited to decide on the merit of the application. It is a settled law that, for an application for extension of time to be granted the applicant has to demonstrate good cause enjoining the court to exercise its discretionary power judiciously so as to either grant the application or not. There is a plethora of cases to the subject, mentioning a few: the case Regional Manager, Tanroads Kagera vs. Ruaha concrete Company Ltd, Civil Application No. 96 of 2007, Rev. Wilson Kyakajumba versus Elias lchwkeleza, Misc. Land Application No. 17 of 2021, Tanga Cement (supra) also the case of Lyamuya (supra) et al. In Tanga Cement (supra) the court of appeal said : '...an application for extension of time is entirely in the discretion of the Court to grant oi refuse it. This unfettered discretion of the Court however has to be exercised judicially, and overriding consideration is that there must he sufficient cause for doing so. What amount to sufficient cause has not been defined. From decided cases a number of factors has been taken into account, including whether or not the application was brought promptly; the absence of any valid explanation for the delay; lack of diligence on the part of the applicant." e.n\\>\\as\s added) Furthermore, case law requires that if the delay is not on illegality on the face of record, then the applicant is required to account for each and every day of delay. This was the position of the Court of Appeal in Lyamuya construction (Supra) and it was re emphasized in Interchick Company (Supra). Guided by the above cases which sets grounds to grant extension of time, the court is invited to determine whether the applicant herein has advanced good or sufficient cause warranting grant the applicant the orders sought. As indicated above, the reasons adduced in the affidavit are two the delay to be supplied with the copy of ruling and two tFb anomaly on the case number. Through the affidavit and submission it is found that the ruling was delivered on 21=t June 2024 and the applicant wrote a letter on 28th June 2024 asking for the copy of ruling which was later supplied on 26th July 2024. In law, the period of waiting for the copy of ruling is automatically excluded in computation of the time limitation per section 19(2) of the Law of Limitation Act. See the case of Abdul Shakoor Halday versus Vijay Shantilah Chohan, Misc. Civil Application No. 325 of 2020. Therefore, the period of waiting for the copy of the ruling from when the applicant wrote the letter on 28th June 2024 to 26tF' July 2024 is excluded in the time limitation to file reference save for the 7 days from date of ruling till the date of writing a letter. As per the Order 7(2) of the Advocates Remuneration Order, 2015 (GN 263 of 2015), the time limitation to file reference is 21 days. This means from the date he received the copy of ruling, he remained with 14 days to file the reference which ended on 9th August 2024. On the 2-d reason for delay on the anomalies of the case number Mr. Mbangwa told the court that when he received the copy of ruling, he noted the anomaly on case number where on 30th July he appeared before Hon. Mbadjo the Taxing Master to rectify the same but he was told the number in the ruling was the correct one. To my understanding and as submitted by Mr. Kamala an application for rectification is a formal application either by way of an application or by a letter but in this case, nothing suggests that such application was preferred. It is again noted that the applicant told the court that on the same date (30.07.2024) Hon. Mbadjo the Taxing Master assured him that the case number in the ruling was the corrdct one, this means that the applicant could have filed the reference on that date without the inconvenience of the case number and still be within the prescribed time. According to the exchequer receipt the application was filed on 21;t August 2024. From the applicant affidavit there is no any information on what transpired from 30th July tO the date of filing the application. This means that the applicant failed to account for the delayed period which is from 09th August 2024 to 21;t August 2024 which makes a total of 12 days of delay unjustifiably. In the case of Interchick company (supra) the court said : ~ Delay of even a single day, has to be accounted for otherwise there would he no point of having rules prescribing periods within which certain steps have to he taken." (Emphasis added) It is on that basis; I find the applicant to have failed to establish good cause necessary for the grant of extension of time because he failed to account for each and every day of delay. The application is hereby dismissed with costs for want of merit. 7 It is so ordered. Dated at Dar es Salaam this 04th day of December, 2024. :lnyal; JUDGE Ruling delivered this 04th day of December, 2024 in presence of the officer of the applicant one Anton Mzuka and Patrick Sylvester Muna the member of the Board of the Trustee of the respondent. ’unyalg JUDGE