RULING Salehe Njovu v

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY

AT SONGEA MISCELLANEOUS APPLICATION NO. 9193 OF 2024 (Originating from the Original Award Decree of Decision No. CMA/RUV/SON/28/2022 Delivered at Songea by Hon. Hilary N. J., Arbitrator on 10/08/2022) SALEH NJOVU …………………………………..…...……………................ APPLICANT

VERSUS D. LIGHT (T) LIMITED ...............................………………………..... RESPONDENT

RULING 29th November, 2024 & 29th January, 2025. KAWISHE, J.: The applicant, Salehe Njovu by way of chamber summons filed this application under rule 56, 24(1), (2), (3), rule 28(1) (a), (b), (c), (d), and (e) of the Labour Court Rules, 2007 and any other provision of the law, seeking for an order for extension of time to file an application for revision to this Court on the decision of the Commission for Mediation Arbitration 1 (CMA). The prayers sought in the chamber summons are supported by an affidavit affirmed by the applicant. The matter proceeded ex parte against the respondent who failed to enter appearance after being duly served with the summons to appear before this court. At the hearing of this application the applicant enjoyed the legal service of Mr. Dickson Ndunguru, learned counsel. Arguing in support of the application, Mr. Dickson Ndunguru adopted the applicant’s affidavit affirmed in support of the application to form part of his submission. He argued further that, in exercising its discretionary powers to grant an order for extension of time, this court be pleased to consider what has been averred by the applicant at paragraphs six and seven of the affidavit affirmed in support of this application. He added that, the delay in filing this application for revision is on technical delay. That, the applicant once filed his application for revision but it was

struck out by this court for being incompetent. He prayed for this court to be guided by the decision given in the case of Mustafa Athumani Nyoni vs. Issa Athumani Nyoni, Civil Application No. 485/10 of 2019 (TanzLII) and grant the prayer for extension of time to file an application for revision 2 against the decision made by the Commission for Mediation and Arbitration. I have dutifully considered the submission made by the applicant’s learned advocate together with the affidavit affirmed in support of the application. Apart from the submission made and the affidavit, I have scrutinized the available facts along with the case law cited by the applicant’s learned advocate. I am settled that, the issue which will lead this court is whether the applicant has adduced good cause to enable this court to use its discretionary powers to extend time to file an application for revision out of time. I am alive that, what amounts to good cause is neither defined nor listed by the law. As a result, it depends on the facts of each case. Consequently, many and varied circumstances could constitute good cause in any particular case. However, there are factors which have been established by case laws which are considered in determining whether or not good cause has been shown. Those factors include, the length of the delay involved; the reasons for the delay; the degree of prejudice, if

any; and whether there is a point of law of sufficient importance such as the illegality of the decision sought to be challenged. Those factors were 3 accentuated in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (TanzLII) and William Ndingu @ Ngoso vs. Republic, Criminal Appeal No. 3 of 2014 (unreported). As stated by the applicant’s learned counsel, in this application, after being dissatistied with the CMA’s arbitral award, the applicant filed an application for revision before this court which was struck out on 01st December, 2023. Thereafter, having discovered that he was out of time to file another application for revision, he filed this application seeking for extension of time. The reason for the delay as it has been averred by the applicant in his affidavit in support of the application and argued by his counsel at the hearing is on technical delay. That, the applicant filed his application for revision timely but it was struck out for being incompetent. From the available records, it is true that the applicant’s application for revision was struck out on 01st December, 2023. The instant application was filed on 25th April, 2024, which was after the expiry of more than five months from the date when the timely filed application was struck out. 4 There is

no iota of doubt that the applicant once filed an application for revision on time but the same was struck out for being incompetent. Thus, I agree with the applicant’s learned counsel that the delay from the date the impugned decision was delivered to the date when the timely filed application was struck out was caused by technical delay. Therefore, the applicant has managed to account for the delay from 10th day of August, 2023, when the impugned decision was delivered to 01st December, 2023, when the application was struck out. As stated earlier herein above, this application was filed on 25th April, 2024. Hence, in determining this application, I will examine the period from when the timely filed application was struck out to the date of filing this application. The applicant has averred at paragraph seven of the affidavit that, after the timely filed application, he used the next four days in preparing this application, but those facts do not reflect what transpired thereafter since the application was filed after almost five months later. There is no explanation given by either the applicant in his affidavit nor by his advocate when he appeared for the hearing of this application. It is a trite law that in limitation of period and extension of time is that even a delay of a single day must be accounted for. This requirement 5 was propunded in the case of Hassan Bushiri

vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported), where the Court of Appeal insisted that, the applicant should account for each day of delay. The Court held that: "Delay of even a single day has to be accounted for. Otherwise, there would be no point of having rules prescribing periods Within which certain steps have to be taken." Applying the reasoning of the authority quoted, in the instant application nothing has been stated in respect to the five months delay from the date the application was struck out. In my view, the period of five months is an inordinate delay. No one can rule that, the period of five months was reasonable in preparing and filing this application. Although, reasonable period is not statutorily expressed, the Court of Appeal amplified on what should be considered as reasonable period. In Samwell Mussa Ng'omango (as a legal representative of the Estate of the late Masumbuko Mussa) vs. A.I.C (T) Ufundi, Civil Appeal No. 26 of 2015 (unreported), the Court of Appeal observed that, filing an application for extension of time in less than 20 days can be a reasonable period. In this application, the applicant delayed for more than five months from the time of being struck out. Accordingly, I find the applicant’s delay for the 6 period of more than five months is unbearable. In other words, he has failed to advance a good and sufficient cause to warrant this court to exercise its discretion in granting an order for extension of time. In the event, the application stands to be unmeritorious and it is hereby dismissed. Being heard ex parte, I make no order as to costs. It is so ordered. DATED and DELIVERED at SONGEA this 29th day of January, 2025. E.L. KAWISHE

JUDGE 29/01/2025 COURT: Ruling delivered in the presence of the Mr. Dickson Ndunguru, applicant’s learned counsel in the absence of the respondent. E.L. KAWISHE

JUDGE 29/01/2025 7