mbolile madimanya vs kazimili petro 2022 tzca 812 8 december 2022

IN THE COURT OF APPEAL OF TANZANIA MWANZA CIVIL APPLICATION NO. 415/08 OF 2022 MBOLILE MADIMANYA (Administrator of Estate of the late Madinganya Mudanga)..... ........ .......APPLICANT AND KAZIMILI PETRO (administrator of the Estates of the late Vena nee Muyanga) .............. ...... RESPONDENT (Application for an extension of time to apply for leave to appeal against the decision of the High Court of Tanzania, at Mwanza) fRumanvika. J/) Dated 29th day of April 2021 In Land Appeal No. 21 of 2020 RULING 6th & 8th December, 2022 MAIGE J.A: I am moved, in this application, for an extension of time to apply for leave to appeal to the Court against the decision of the High Court (Rumanyika, 1) dated 29th April, 2021. Before initiating the instant application, the applicant had filed, at the High Court, Miscellaneous Land Application No. 95 of 2021 for leave to appeal to the Court which however was dismissed, on 23rd day of March, 2022. The intended application for leave, the subject of this application is thus a second bite in terms of rule 45 A (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The factual background from which this application is traceable, can be summarized as follows. The applicant unsuccessfully filed an application at the District Land and Housing Tribunal for Mwanza ("the DHL") for ownership of a 12 acres land situated at Itandula Village within the Magu District in the Mwanza Region ("the suit land")* Aggrieved, the applicant filed Land appeal No 21 of 2021 at the High Court of Tanzania at Mwanza which was dismissed, for want of merit, on 29th April, 2021. Still unhappy, the applicant applied to the High Court for leave to appeal, the application of which was dismissed on 24th March, 2022 (Kahyoza, J.). The applicant, it would appear, is not satisfied with the refusal by the High Court to grant him leave to appeal to the Court. Therefore, on 7th May 2022 having noted that he is time barred to file a fresh application at the Court, lodged the instant application. Both the parties appeared in persons and without representation at the date of hearing. Submitting on the application, the applicant fully adopted the notice of motion and the affidavit in support thereof and urged the Court to grant the application. The respondent submitted that, the application is without merit and should be thrown away. As rule 10 of the Rules requires, the issue which I am bound to address is whether or not the applicant has shown good cause to justify 2 a grant of an extension of time. Though the definition of the term good cause is not in the Rules, judicial precedents have set out some guiding principles that can be used to determine existence or non-existence of good cause. For instance, in Tanga Cement Company Limited v. Jumanne D. Massanga and Amos A. Mwalwanda, Civil Application No. 6 of 2001 (unreported), we observed:- " What amounts to sufficient cause has not been defined. From decided cases a number o f factors have to be taken into account including whether or not the application has been broughtpromptly; the absence o f any explanation for delay, lack o f diligence on the part o f the applicant Similarly, in Lyamuya Construction Company Ltd. v. Board of the Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), the Court set out the following guidelines to be taken into account in determining whether good cause has been made out: one, the applicant must account for all the period of delay; two, the delay should not be inordinate; three, the applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and four, If the court thinks that there are other sufficient reasons such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. The time available for a second bite application to the Court is 14 days from the date of refusal by the High Court. This is according to rule 45 A (1) (b) of the Rules. In here, the refusal was on 24th March, 2022. Therefore, the intended application for leave ought to have been filed on 8th April, 2022. This application has been filed on 26th May, 2022. Counting from 8th day of April, 2022, there is a delay of 36 days. The applicant is thus is expected to account for each of the 36 days of delay. As can be gleaned from the notice of motion, affidavit and the oral submissions, the applicant is associating the delay with prosecution of the first bite application at the High Court. That is totally wrong because in as long as the first bite application was timely filed, the 14 days period within which to file second bite application, starts running from the date of decision in the first bite application. Besides, subject to the Registrar's certificate of exclusion under rule 45 A (2) of the Rules, the period in which the applicant was awaiting for the relevant ruling and order of the High Court is excluded. The affidavit in support of the application, it is apparent, is absolutely silent on what happened in the 48 days period as between the refusal of the first bite application and the instant one. Such period should have been accounted for. In the absence of that, why shouldn't the application fail? It is accordingly dismissed. Since the respondent did not file any affidavit in reply, I will not give an order as to costs. DATED at MWANZA this 7th day of December, 2022. I. J. MAIGE JUSTICE OF APPEAL The Ruling delivered this 08thday of December, 2022 in the absence of both parties, is hereby certified as a true copy of the original. 5