Magandera Swagarya

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA CIVIL APPLICATION NO. 000018789 REFERENCE NO. 202408041000018789 {Arising from Misc Land Appeal No, 91 of2020 High Court Musoma, Misc Land Appeal No. 17 of2020 Resident Magistrate Court Musoma ExtJurisdiction, LandAppeal No. 138 of District Land and Housing Tibunal for Mara Originating from Land case No. 4 of2015 Nyamuswa Ward Tribunal) BETWEEN MAGANDERA SWAGARY.................................... APPLICANT VERSUS YOSHUA WARYOBA........................... ............................ RESPONDENT RULING 02* &1(P April, 2025 M.L. KOMBA, J.: This is an application for extension of time to appeal to the Court of appeal out of time against the decision in Misc. Land Appeal No. 17 of 2020 Resident Magistrate Court Musoma Ext Jurisdiction. The application is premised under Rule 10 of the Court of Appeal Rules of 2009 and section 14 of the Law of Limitation Act, Cap. 89 R.E 2019 and section 93 and 95 of the Civil Procedure Code, Cap. 33 R.E 2019. Upon service, respondent filed counter affidavit to contest the same. Page 1 of5 When the matter was ready for hearing, applicant was represented by Mr. Daudi Mahemba and respondent was without representation and was ready to proceed. Mr. Mahemba submitted that the applicant is applying for enlargement of time so that he may appeal to the Court of Appeal against decision of Extended Jurisdiction in Misc Land Appeal No. 17 of 2020 which was delivered on 23/3/2021. Showing intention to appeal, he submitted that applicant filed notice to appeal and applied for certification on point of law which was issued by this court on 18/3/2022. He appealed to the Court of Appeal and his case was cause listed in 09/7/2024, However he said the matter was not entertained on merit because applicant did not serve the other party his Notice of Appeal and therefore, the matter was struck out for want of procedure. Counsel went on convincing this court that from when the matter was struck out applicant found he was out of time and he is applying for time so that he may appeal to the Court of Appeal because first appeal failed on technical grounds. As the appeal was struck out, he believes he still have chance to lodge his appeal when the time is extended as prayed. For easy of reference, he reminds this court that all necessary document has been made part to their affidavit. Page 2 of 5 Respondent being a lay person in law, he prayed this court to adopt his filed my counter affidavit and prayed applicant not to be granted. Mr. Mahemba had no rejoinder. I have impassively considered the submission from both parties. To begin with, I feel it is instructive to reiterate, as a matter of general principle that whether to grant or refuse an application like the one at hand is entirely in the discretion of the Court, but that discretion is judicial and so it must be exercised according to the rules of reasoning and justice. It is trite that whenever any part seeks for enlargement of time to file an application or appeal out of time, applicant must advance the sufficient reason (s) that the court can consider in exercise its discretion. There is no decisive definition of what a sufficient/good cause is but some issue has to be considered like length of delay involved, reasons for delay and illegality as submitted by Mr. Mwita. See Seleman Seif vs Hafidh Said (supra), Jaliya Felix Rutaihwa vs Kalokora Bwesha & Another, Civil Application No. 392/01 of 2020, Lyamuya Construction vs Board of Registered Trustee of Young Women Christ Association of Tanzania, Civil Application No. 2 of 2010 and Ludger Page 3 of 5 Bernard Nyoni vs National Housing Corporation, Civil Application No. 372/01/2018, CAT at Dar es Salaam (Unreported). In the present application, the counsel for applicant registered reason for extension of time as captured at paragraph 3 of the affidavit sworn in 25/07/2024, at paragraph 4 of supplementary affidavit sworn on 20/9/2024, at paragraph 5 and 6 of the affidavit sworn on 02/11/2024 that he was in court prosecuting his appeal but the appeal with reference number 421 of 2020 was struck out on 17/01/2024 on technical grounds of failure to serve the respondent with Notice of Appeal. Respondent resisted the application and on the 2nd paragraph complained that applicant has no reason to account for delay and at paragraph 3 he believe the appeal was struck out because it was time bared and there is no any serious irregularity as complained by applicant. I had time to read all affidavit and the ruling of the court issued on 17/07/2024. It undisputed that applicant followed all procedures in filing his appeal and it was cause listed 09/07/2024. However, it was objected for failure to serve respondent with Notice of appeal. From there he found he cannot file another appeal till he got extension of time. On 25 Page 4 of 5 July, 2024 that is within five working days he filed this application for extension of time. I find applicant acted prompt from when the matter was struck out by the Court to when this application is filled. I find the submission and reason adduced manage to move this court to grant the prayer. All being done, I hold that the applicant has sufficient reason to be granted what he prayed. I hereby grant 30 days from the date of this ruling for the applicant to lodge his appeal to the Court of Appeal. No order as to costs. DATED at MUSOMA this 10th day of April, 2025. M. L. KOMBA Judge Page 5 of 5