Ruling Misc Civil Application No 26945 of 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM MISC CIVIL APPLICATION NO. 26945 OF 2024 MARIAM ABDALLAH SHOMARI (the Administratrix of the estate of the late Abdallah Shomari……………………..……………. APPLICANT VERSUS ANNO BALTAZARY TAIRO……………………………..1ST RESPONDENT DUNGA SAID KODI………………………………………2ND RESPONDENT RULING MKWIZU, J The applicant is before the court seeking an extension of time within which to file an appeal against the decision rendered in Civil Case No. 161 of 2023, originating from the District Court of Kinondoni. During the hearing, Mr. Ngimba represented the applicant, while Mr. Kasaizi represented the respondents. Both advocates delivered oral arguments regarding the application for an extension of time. Mr. Ngimba stated that the application arose from the trial court’s ruling in Civil Case No. 161 of 2023, which dismissed the case due to lack of 1 jurisdiction. The applicant sought an extension of time through Misc. Civil Application No. 8672 of 2024, which was granted. Referring to paragraphs 15 and 16 of the applicant's affidavit, he noted that following the extension granted on August 12, 2024, the applicant filed Civil Appeal No. 0000019298, but the appeal was subsequently struck out on September 24, 2024, for failing to attach the drawn order . The applicant requested the order drawn from the trial court on September 25, 2024, but did not receive it until October 20, 2024. He contended that the applicant actively pursued her rights and encountered legal technicalities, which constitute technical delays warranting an extension of time. He relied on Johan Marald Christer Abrahsson v. Exim Bank Tanzania Limited and 3 Others, Civil Application No. 224/16/2018, and Bank M Tanzania Limited v. Enock Mwakyusa, Civil Application No. 520/18/2017 (all unreported), urging the court to grant the application. In response, the respondent's counsel adopted the contents of the counter-affidavit and opposed the application. He observed that the district court issued the drawn order on October 25, 2023. Still, no application or correspondence within the affidavit indicating that the applicant had requested this order on time until September 25, 2024, nearly a year after it was issued, indicating negligence on the part of the 2 applicant and their advocate, which is not a valid reason for extending time. Furthermore, on July 22, 2024, this court granted the applicant an extension of time, assuming that all necessary documents for the appeal were in hand which was struck out due to the non-attachment of the drawn order, and there is no evidence that the applicant lacked the order at that time. He argued that the cases cited by the applicant are distinguishable, as they relate to initial requests for extensions. In contrast, the applicant had already received an extension that was not properly utilized. He argued that in terms of section 93 of the CPC, the sufficient cause must be demonstrated, and the applicant has failed to explain their inaction since the appeal was struck out in 2023. He requested the dismissal of the application with costs. In rejoinder, the Applicant's counsel asserted that the respondent's claim that the cited authorities are distinguishable is unfounded, as all of them pertain to the extension of time. He contends that the drawn order was not provided until after the request was made in September 2024. I have cosidered the submissions presented by the parties involved. It is acknowledged that the application currently before the court requires a demonstration of sufficient cause for the delay in order to be successful. 3 In the case of Rutagatina C.L. v. The Advocates Committee and Another, Civil Application No. 21 of 2011(Unreported), this court elucidated the parameters that define sufficient reasons warranting the court's consideration and determined that adequate reasons are those which the court may accept as justification for preventing the applicant from undertaking a vital step promptly, or other justifications enabling the intended appeal to proceed despite being filed out of time. And as a general rule, in an application for extension of time, reasons for the delay are to be adduced with the period of the delay accounted to sufficiently demonstrate that the delay was not out of negligence, apathy or lack of diligence and the other situation includes where the impugned decision contains an apparent irregularity of the face of the records that needs the court's attention. See Lyamuya Construction v. Young Women Christians Association, Civil Application No. 2 of 2010; Tanga Cement Co. v. Jumanne D. Masangwa and Amos Mwalwanda, Civil Application No. 6 of 2001 and Aluminium Africa Ltd V Adil Abdallah Dhyebi and others, Application No. 6 of 1990 (All Unreported) to mention just a few. The Applicant has asserted in paragraphs 15 and 16 of the affidavit that 4 subsequent to the grant of an extension of time on 12th August 2024, she filed Civil Appeal No. 0000019298 of 2024, which was subsequently struck out on 24th September 2024 due to the non-attachment of a drawn order. The Applicant, through a letter dated 25th September 2024, requested the aforementioned drawn order from the trial court, of which he was not provided until 20th October 2024. Respondent’s counsel attributes the delay to the applicant's negligence, explaining that the request for a drawn order was sent to the court on 25th September 2024, while the judgment was delivered on 25th October 2023, demonstrating nearly a year of clear negligence on the part of the applicant and his advocate, which cannot justify an extension of time. All considered it is inevitable that there is, indeed, a technical delay attributable to the sequence of events in this matter. The circumstances outlined suggest that the Applicant did not forfeit her rights, as she was persistently taking action despite encountering legal technicalities that can reasonably be classified as a technical delay, for which are legally categorised as sufficient reason for an enlargement of time. The Court of Appeal had in Fortunatus Masha vs William Shija & Another [1997] TLR 154, it was held that; “A distinction should be made between cases involving real or actual delays and those like the present one which only involve 5 what can be called technical delays in the sense that the original appeal w as lodged in tim e but the present situation arose only because the original appeal for one reason or another has been found to be incom petent and a fresh appeal has to be instituted. In the circumstances, the negligence if any really refers to the filing of an incom petent appeal not the delay in filing it. The filing of an incom petent appeal having been duly penalized by strik ing it out, the sam e cannot be used yet again to determ ine the tim eousness of applying for filing the fresh appeal. In fact, in the present case, the applicant acted immediately after the pronouncement of the ruling of this Court striking out the first appeal.”( Emphasis added) In this matter, the applicant's failure to act promptly in collecting the drawn order has led to the strike of his appeal; therefore, that period cannot be considered when defining the time for the delay. While it is accurate that the letter requesting the drawn order was written a year after the trial court's decision, this alone should not overshadow the fact that the applicant’s prior failure to secure the drawn order before filing his initial appeal has already been addressed by the court through the striking out of that appeal. The critical timeframe for this court’s consideration begins with the striking out of the first appeal on September 6 24, 2024, due to the non-attachment of the drawn order. Aware of her rights, and in view of correcting the mischief, the applicant promptly drafted and submitted a request for the drawn order the very next day, 25 September 2024. Upon receipt on 20 October 2024, the applicant subsequently filed the current application on 26 October 2024. This sequence of events demonstrates the applicant's diligence in rectifying the situation and expeditiously complying with the court's requirements In my view, the applicant has acted diligently. The application is desirable and is granted as prayed. The applicant shall file the intended appeal within thirty (30) days from the date of this ruling. Each party is to bear its own costs.It is accordingly ordered. DATED at DAR ES SALAAM, this 21ST MARCH 2025 E.Y. MKWIZU JUDGE 7