MISC APPLICATION NO 4166 OF 2024 RAMADHANI SEMGAZA AND 2 OTHERS VS ALISTAR JAMES COMPANY

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISC. APPLICATION NO. 4166 OF 2024 (Arising from High Court Decision issued on 31st November 2020) RAMADHANI SEMGAZA AND 20THERS.... ........................... ....APPLICANT VERSUS ALISTAR JAMES COMPANY RESPONDENT RULING Date o f last order: 22/4/2024 Date o f Ruling: 29/4/2024 OPIYO. J. With the intention of challenging the decision of this Court issued on 31 November 2020 with reference No. 326 of 2019, the applicants herein filed this application seeking for enlargement of time for the applicant to file notice of appeal out of time, after their Civil appeal No. 78 of 2021 before the Court of Appeal was withdrawn under rule 102 of the Court of Appeal Rules on 5/2/2024. The applicant is represented by Edwin silayo. The matter was heard ex parte, as the respondent failed to appear. Supporting the application, Mr. Edwin Silayo submitted that the applicants lodged notice of appeal in time on 12/12/2020. They also filed appeal No. 78 of 2021 before the Court of Appeal in time. However, when the matter was called for hearing on 5/2/2024 the applicants advocate realized that the proof of service of notice of appeal was not attached as required by the law. This obliged the advocate representing the applicant to withdraw the appeal. Upon the withdrawal, the applicant was now out of time, both in filing notice and appeal itself. This is the reason he had to apply for extension of time to file notice of appeal out of time first as hereunder. He submitted that, they filed the application around 21st of February after the appeal was withdrawn, therefore, there is no inordinate delay involved. He thus, prayed for the application to be granted. It is a trite law that, the Court may extend upon good cause shown by the applicant as provided under Rule 56 (1) of Labour Court Rules (G.N No. 106 of 2007). The applicant in essence pleads technical reasons for his delay. In the case of Fortunatus Masha v William Shija & Another [1997] TLR 154 the distinction between actual and technical delay was made when the court held th a t­ 'll distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but has been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case, the applicant had acted immediately after the pronouncement o f the ruling o f the court striking out the first appeal. In these circumstances, an extension o f time ought to be granted." In this application, it is undisputed that the first notice of appeal and subsequent appeal to the Court of Appeal were filed in time. It is also undisputed that, the appeal was withdrawn for being incompetent on 5/2/2024. On 29th of the same month, they filed this application to enable the applicant to file the notice out of time. As they acted immediately, after the withdrawal, it falls under the technical delay as enumerated in the authority above. On that basis, it is my considered view that the applicants managed to adduce good reason for this Court to exercise its discretion of extending time. Therefore, I hereby allow the application for extension of time to file Notice of Appeal, the same be filed within 14 days from the date of this order. No orders as to costs. M. P. OPIYO JUDGE 29/ 4/2024