KUMALIJA NGOBOKA CASE final final final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA MISC. CRIMINAL APPLICATION NO. 31522 OF 2024 (Arising from the Decision of Kishapu District Court in Criminal Appeal No. 11879/2023 dated on 18/09/2024) KUMALIJA NGOBOKA…………….…………………..…1ST APPLICANT LUGESHA GAKALA……………………………………….2ND APPLICANT KULWA GUMALIJA………………………………….......3RD APPLICANT VERSUS JAMES CHIBA MALUNGU ………………………………. RESPONDENT RULING 10th December, 2024 & 24th January, 2025 MASSAM, J: - The applicants in this case filed this application pleasing this court to grant an order for extension of time within for them to file an appeal out of time. The application is made by way of chamber summons under Section 25(1)(a) and (b) of the Magistrates’ Courts Act Cap 11 R:E 2019 which accompanied by the joint affidavit sworn by the applicants supporting the application and opposed by the counter affidavit dully sworn by respondent. When the matter was called for hearing, both parties appeared in person, unrepresented and by consensus they agreed to be heard by way of written submission, and the court granted prayers and scheduled the file date as follows applicants’ submission 23/12/2024, reply on 1 6/1/2025 and rejoinder if any on 13/1/2025 and lastly ruling on 24/1/2025 the court orders were complied with. Arguing in support of their application, the applicants argued that they were aggrieved with decision of the District Court where they filed an appeal to High Court on 15/10/2024 unfortunately the said appeal was rejected by the Deputy Registrar on 19/10/2024 for the reasons that the name of the second applicant was wrongly written and order the same to be corrected and when they brought again the time was already elapsed on 17/10/2024. Also, the applicant submitted that after rejection of the said appeal, they filed application for extension on 30/10/2024. More on that, the applicant argued that there was illegality in Criminal Appeal No. 11879 where the District Court turned a blind eye in regard to the fact that the said appeal No. 11879 was brought out of time because Criminal Application No. 01/2023 dated 02/11/2023 the respondent was given 14 days to appeal out of time but he lodged the same on 2/5/2024. Additionally, the applicants said that as we all knows that an illegality is good cause for extension of time, they forties their argument by referring the case of Attorney General of Zanzibar vs Laemthong Rice Company Limited and Another, Civil Application 2 No. 729/15 of 2023 CAT at Zanzibar where the court of appeal at page 14 had this to say, I quote; - “It has been established that illegality is good cause for extension of time. In Principal Secretary Ministry of Defense and National Service(supra), this court stated that ‘’In our view when the point at issue is one alleging illegality of the decision being challenged, the court has duty even if it means extending the time for the purpose to ascertain the point and if the alleged illegality be established, to take appropriate measures to put the matter and record’’ Finally, the applicants prayed to this court for extension of time so that they can bring an appeal out of time to challenge the above stated illegality. On his side the respondent argued that 1st applicant raised the Preliminary Objection as results the objection were overruled and the respondent was allowed to refile his appeal of which the 1st applicant was aggrieved with such ruling and not 2nd and 3rd applicant because they were absent during the trial. 3 Notably, the respondent argued that the applicants failed to attach the said appeal and evidence to prove that the appeal was rejected by Deputy Registrar. Moreover, the respondent submitted that the delay and the errorless of the 2nd applicant names was occasioned by intentionally, careless and laziness of the 1st applicant who prepared the appeal and lodged the same. Finally, the respondent prayed that the application be dismissed because the applicants have failed to show a good cause, clear illegality in that ruling and good degree of the delay and hence the application cannot stand. Having heard and consider the submissions by both parties, the issue is whether the application discloses sufficient cause for extension of time. To commence with, it is clear in the case of Tanga Cement Company Limited vs. Masanga and Amos A. Mwalwanda, Civil Application No. 6 of 2001, for a person to apply for extension of time, has to disclose sufficient reasons, which was defined as follows; “What amounts to sufficient cause had not been defined. From decided cases a number of factors have to be taken into account, including 4 whether or not the application has been brought promptly, the absence of any valid explanation for delay, lack of diligence on the part of the applicant." However, there are also other factors that are used to determine whether the applicant has shown good and reasonable cause such as the length of the delay, whether or not the delay has been explained away, diligence on the part of the applicant. See the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). In our present case, the applicant said that they filed appeal within the time on 15/10/2024 but was rejected by Deputy Registrar on 19/10/2024 because the same contained different names as it appears in lower court and the time limitation for appeal lasted on 17/10/2024. They added that after rejection of the said appeal, they filed application for extension of time on 30/10/2024. Moreover, the applicant argued that there was illegality in the ruling in Criminal Appeal No. 11879 where the district court turned a blind eye in regard to the fact that the said appeal No. 11879 was brought out of time because Criminal Application No. 01/2023 dated 02/11/2023 the 5 respondent was given 14 days to appeal out of time and he failed to adhere to the said time limit given and lodged the same on 2/5/2024. The applicants argued that there was illegality which is good cause for extension of time On his part, the respondent argued that 1st applicant raised the Preliminary objection as results the objection were overruled and the respondent was allowed to refile his appeal of which the 1st applicant was aggrieved with such ruling and not 2nd and 3rd applicant because they were absent during the trial. Notably, respondent argued that the applicants failed to attach the said appeal and evidence to prove that the appeal was rejected by Deputy Registrar. Finally, the respondent prayed that the application be dismissed because the applicants have failed to show a good cause, and clear illegality in that ruling and good degree of the delay and hence the application cannot stand. I am aware that extension of time is discretionary power of the court upon the good cause being shown. In the case of Republic vs Yona Kaponda and 9 others [1985] TLR 84 where the Court of Appeal held that; - 6 ‘’In deciding whether or not to allow an application to appeal out of time, the court has to consider whether or not there is sufficient reasons not only for the delay, but also sufficient reasons for extending the time during which to entertain the appeal’’. Similar situation was stated in the case of Tanzania Revenue Authority vs. Tango Transport Company Limited, Civil Application No 5 of 2006, Addallah Salanga & 63 others vs Tanzania Habours Authority, Civil Application No. 4 of 2001, Wankira Benteel vs. Kaiku Foya, Civil Reference No. 4 of 2000. I have scanned submission from both parties and going through the records. Indeed, there is no evidence to prove that the Deputy Registrar rejected the appeal filed by applicant. In order to prove the same, the applicants were supposed to attach affidavit sworn by Deputy Registrar to that effect, failure to do so their grounds became baseless. Even if it was true that the Deputy Registrar rejected their appeal, still the applicants failed to account each day delayed because they said that the Deputy registrar rejected the appeal on 19/10/2024 but they filed the same on 30/10/2024 all these 11 days has not been accounted by the applicants. It is also beyond imagination that applicants were correcting the said name in the intended appeal for 11 days. 7 This being application for extension of time, the law is settled that applicant has to show sufficient cause or good cause for delay as it was held in the case of Regional Manager, Tanroads Kagera vs. Ruaha Concrete Company Ltd, Civil Application No. 96 of 2007, CAT (unreported) and Benedict Mumello vs. Bank of Tanzania [2006] E.A 227 and that applicant is required to account for each day of delay and give sufficient reason for that delay. There is a litany of cases to that effect. In the case of Attorney General vs. Mkongo Building and Civil Works and another, Civil Application No. 266/16 of 2019, the court gave criteria to be considered in application for extension of time that; (a) the applicant must account for all the period of delay; (b) the delay should not be inordinate; (c) the applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and (d) if the court feels that there are other sufficient reasons, such as the existence of a point of law sufficient importance; such as the illegality of the decision sought to be challenged." It is undisputed that an illegality is good cause for extension of time however the applicant must point out illegality of the decision being challenged and the court has duty to ascertain it. See the case of 8 Attorney General of Zanzibar vs. Laemthong Rice Company Limited and Another (supra). From the records the applicant said that the ruling was delivered on 2/11/2023 and the respondent was given 14 days to file appeal out of time, but he filed the same on 2/05/2024 however there was no evidence to prove that the respondent filed on the alleged date. Guided by the stated authority above, and going through the reasons adduced by the applicants. I agree with the respondent that the applicants have failed to show a good cause and clear illegality in that ruling and good degree of the delay and hence the application cannot stand. For the foregoing reasons. I therefore dismiss this application for want of merit. It is so ordered. Dated at Shinyanga this 28th day of January, 2025. R.B. Massam Judge 9