RULING Kevin Nyambo vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA MISCELLANEOUS APPLICATION NO. 23694 OF 2024 (Originating from the High Court of Tanzania, Songea Sub-Registry at Songea in Land Appeal No. 7701 of 2024) KEVIN NYAMBO ………………………………..…...……………................ APPLICANT VERSUS MWANABIBI NGONYANI ...........................………………………..... RESPONDENT RULING 23rd January, 2025 & 12th March, 2025. KAWISHE, J.: The applicant, Kevin Nyambo by way of chamber summons filed this application under section 11 of the Appellate Jurisdiction Act (Cap. 141, R.E 2019), seeking for an order for extension of time within which to file an appeal to the Court of Appeal out of time. He also prays for the costs of the suit. The prayers sought in the chamber summons are supported by an affidavit sworn by the applicant. 1 The application has been resisted by the respondent through the counter affidavit filed in this cout. At the hearing of this application the applicant enjoyed the legal service of Mr. Dickson Ndunguru, learned counsel while the respondent was represented by Mr. Nadhiru Dadi, also the learned advocate. Arguing in support of the application, Mr. Dickson Ndunguru adopted the applicant’s affidavit sworn in support of the application to form part of his submission. He argued further that, the main reason for the delay in filing the appeal before the Court of Appeal is stated under paragraph four of the affidavit that the applicant was sick. That, after recovery he approached his advocate, Mr. Ndunguru who adviced him to apply for extension of time to get the relief he is looking for. He added that, the applicant agreed promptly to the advice and prepared the application on 16th September, 2024 thus, on 25th September, 2024 the application was filed in court. Mr. Ndunguru argued that, sickness is among the reasons for extention of time. He bolstered his stance by citing the case of Hongyang International Company Limited vs Badr East African Enterprises Limited, Misc. Civil Application No. 13777 of 2024. He added that, the applicant was not negligent in dealing with his case but he delayd 2 in filing the application due to the reasons stated above. He prayed for this court to grant the extension of time. On the contrary, Mr. Nadhiru Dadi, started by adopting the counter affidavit sworn by the respondent and argued that, in this application, the the applicant delayed in filing the notice of appeal to the Court of Appeal for 22 days. He submitted that, the decision to be challended was delivered on 22nd July, 2024. That, the treatment records show that he went to hospital on 10th August, 2024. He contended that, the applicant has failed to account the 18 days from 22nd July, 2024 up to 9th August, 2024. He further contended that, for extension of time to be granted the applicant must account for each day of delay and he bolstered his submission by citing the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women’s Christian Association, Civil Application No. 2 of 2010 (TanzLII). In respect to the case of Hongyang International Co. Ltd (supra) cited by the applicant’s learned advocate, Mr. Dadi agreed that sickness may form a ground for extension of time but there must be evidence to prove that the applicant was sick as stated in the case of Daniel Ndege 3 vs. Rhobi Nyamaisa, Misc Civil Application No. 40 of 2021 (unreported). Lastly, he prayed for this application to be dismissed with costs. In his terse rejoinder submission, Mr. Dickson Ndunguru submitted that, it is correct that the applicatnt attended medical treatment after 18 days from the date of delivery of the decision. He added that, the respondent’s advocate has misconsived the interpretation in the case of Lyamuya Construction Company Limited (supra), since the Court stated clearly that the applicant must account for each day of delay from the expiry of the given statutory period and in this case it was after 30 days from the date of the delivery of the decision. He prayed for this court to ignore the respondent’s advocate contention that the applicant failed to account for the 18 days which was within the time prescribed by the law. He argued that, in this application, the applicant was not negligent in dealing with this matter and prayed for this court to allow the application without an order for costs. I have dutifully considered the submission made by the learned advocates from both parties together with the affidavit sworn in support of and in objecting the application. Apart from the submissions and the affidavit, I have also scrutinized the available facts along with the case law 4 cited by the learned advocates from both parties. I am settled that, the issue which will lead this court is whether the applicant has adduced good and sufficient cause to enable this court to use its discretionary powers to extend time within which to file notice of appeal out of time. I am alive that, what amounts to good and sufficient cause is neither defined nor listed by the law. It depends on the facts of each case. Consequently, many and varied circumstances could constitute good and sufficient cause in any particular case. However, there are factors which have been established by case laws which are considered in determining whether or not good cause has been shown. Those factors include, the length of the delay involved; the reasons for the delay; the degree of prejudice, if any; and whether there is a point of law of sufficient importance such as the illegality of the decision sought to be challenged. Those factors were accentuated in the case of Lyamuya Construction Company Limited (supra) and William Ndingu @ Ngoso vs. Republic, Criminal Appeal No. 3 of 2014 (unreported). As stated by the applicant’s learned counsel, in this application, the reason for the delay in filing the notice of appeal within time is sickness. In his affidavit sworn in support of the application and the attached 5 documentary exhibit show that, the applicant was sick and admitted at Mkongo Health Centre on 10th August, 2024 but he was discharged on 14th August, 2024. The applicant was orderd to attend at the Health Centre on 22nd August, 2024 and the records shows that, he was found to be improving from his sickness and no new complaint. The evidence in records reveals further that, after recovery from sickness, the applicant approached advocate D.P. Ndunguru for legal advice on 16th September, 2024 and in 25th September, 2024 this application was filed. The respondent’s counsel has opposed the application basing on the unaccounted 18 days from the date of decision in which the applicant’s advocate argued that, it was before the expiry of the prescribed period for filing the notice of appeal. It is the applicant’s advocate submission that the applicant was to account for the days from the date of expiry of the prescribed period for filing the notice of appeal. The respondent’s learned counsel cited the case of Lyamuya Construction Company Limited (supra) insisting that it clearly states that the applicant has to show his diligence from the date of delivery of the decision and not from the date of expiry of the period prescribed by the law. 6 Given this rivalry discussion, I decided to revisit the supporting affidavit with its annextures. I found that, the judgment was delivered on 22nd July, 2024 as per annex A1. The applicant fell sick from and admitted for treatment on 10th August, 2024 and was discharged on 14th August, 2024. Also, paragraph 6 of the applicant’s affidavit states that the time for lodging the notice of Appeal to the Court of Appeal was within 30 days from the date the judgment was delivered. Thus, from 22nd July, 2024 the 30 days expired on 21st August, 2024. According to annex A2 attached by the applicant, he was discharde on 14th August, 2024. He was still within 30 days of filing the notice of appeal. He did not file the same. For apparent reasons, he did not do it as A2 shows that he was on 7 days post admission. On 22nd August, 2024 annex A2 states that he had improved and had no new complaint. This means that he was medically cleared. From the applicant’s learned counsel submission which was supported by paragraph 5 of the applicant’s affidavit, the applicant recovered on 16th September, 2024 and approached the learned counsel for legal services. He added that upon receiving legal advice, this application was prepared on 16th September and filed it on 21st September, 2024 on the electronic case management system of the 7 judiciary. The respondent’s learned counsel disputed this assertion holding that the applicant was negligent in pursuing his appeal. In the circumstances of this application, I think, the statutory time for lodging the notice of appeal need not to be accounted for as it is not part of the delay. The time to be accounted for is after the expiry of the statutory period that is 30 days after the delivery of the judgment. For clarity, 30 days expired on 21 August, 2024. In addition, the time the applicant received treatment should also be excluded as well. He was admitted on 10th August, 2024 up to 14th August, 2024. Moreover, the post admission time that was 7 days which should be excluded as well. He was under medical care up to 22nd August, 2024. The applicant’s task is on the time after being discharged from the treatment, following the medical clearance that, he had improved and no new complaint. Subsequently, he has to account for the delay from 23rd August, 2024 to 21st September, 2024. In his affidavit the applicant deponed that, he recovered on 16th September, 2024 while contradicting his medical report which cleared him from new complaints. He has not stated whether he experienced a new complaint after the medical clearance issued on 22nd August, 2024. 8 Counting quickly, it makes 25 days unaccounted for. Not 22 days as he stated in his affidavit. It is a trite law that, the delay even for a single day must be accounted for. This requirement was propounded in the case of Hassan Bushiri vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported), where the Court of Appeal insisted that, the applicant should account for each day of delay. The Court held that: "Delay of even a single day has to be accounted for. Otherwise, there would be no point of having rules prescribing periods Within which certain steps have to be taken." Applying the position of the Court in the authority quoted, in the instant application nothing has been stated in respect to the delay for 25 days. Although the period of delay is not statutorily pescribed, in Samweli Mussa Ng'omango (as a legal representative of the Estate of the late Masumbuko Mussa) vs. A.I.C (T) Ufundi, Civil Appeal No. 26 of 2015 (unreported), the Court of Appeal observed that, filing an application for extension of time in less than 20 days can be a reasonable period. In this application, the applicant delayed for 25 days. The period of 25 days is not a reasonable delay and makes the applicant's diligence in dealing with this matter questionable. The applicant’s advovate has contended that, the 9 first 18 days are to be exempted from being accounted for since they were within the prescribed time. I agree with him but it does not rescue the situation he is facing. The applicant’s advocate in his submission has acconted for the days from 10th August, 2024 up to 22nd August, 2024 in which he was within the prescribed time. Accordingly, I find the applicant’s delay is unresonable. In other words, he has failed to advance a good and sufficient cause to warrant this court to exercise its discretion in granting an order for extension of time. In the event, the application stands to be unmeritorious and it is hereby dismissed with costs. It is so ordered. DATED and DELIVERED at SONGEA this 12th day of March, 2025. E.L. KAWISHE JUDGE 12/03/2025 10 COURT: Ruling delivered in the presence of Mr. Dickson Ndunguru learned advocate for the applicant and in the presence of Mr. Lazaro Simba learned advocate for the applicant and in the presence of the applicant. E.L. KAWISHE JUDGE 12/03/2025 11