MCA NO 20353 OF 2024 SALUM SHEIKH SALUM

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 20353 OF 2024 (Arising from the Ruling and Orders in Civil Case No. 73 of 2011) _____________________________ SALUM SHEIKH SALUM (the administrator of the estate of the late NADHIRU ALLY) ……………………………...APPLICANT VERSUS MOHAMED IKBAL HAJI…………………………………..1ST RESPONDENT MBARAKA KITWANA DAU…………………….…………2ND RESPONDENT RULING Date of last order: 25th March 2025 Date of Ruling: 3rd April 2025 MTEMBWA, J.: Under section 14(1) of the Law of Limitation Act, Cap 89, R.E 2019, the Applicant has preferred this Application seeking an order of extension of time within which to set aside the abatement order dated 8 th November 2017. Briefly, the Applicant was appointed as an administrator of the estate of the late Sheikh Salum Mboga by the Primary Court of Temeke in Probate and Administration Cause No. 979 of 2022 on 15th September 2022. By then, he was also an administrator of the estate of the late Saidia Ally. Having been appointed, he learnt that Sheikh Salum Mboga and 1 Nadhiru Ally were administering the estate of the late Saidia Ally. However, Sheikh Salum Mboga died, leaving Nadhiru Ally as an administrator. The facts further reveal that Nadhiru Ally died in 2017, leaving behind a pending civil case registered as Civil Case No. 73 of 2011. Following his death, the case could not proceed for some time until 8th November 2017, when the proceedings abated. To satisfy himself of the order and the stage reached before abatement, the Applicant made a number of fruitless follow- ups of the records until February 2024, when he was supplied with the requisite documents. On perusal, he noted that the suit abated on 8th November 2017. The Respondents could not be secured for attendance. As such, on 9 th October 2024, I ordered substituted service by publication. When this matter came for orders on 6th March 2025, Mr. Benitho Mandale, the learned counsel, appeared for the Applicant, while the Respondents entered no appearance. When prompted, the learned counsel agreed to argue this Application by way of written submissions. Having perused the records, I am satisfied that he adhered to the agreed schedule. In his written submissions in support of the Application, having prefaced on what transpired, the learned counsel observed that the delay was actuated by the failure to be supplied with the requisite Court records on 2 time. Following such failure, the Applicant engaged a lawyer for that purpose, who, in February 2024, obtained the court records from which it was discovered that the suit in issue abated on 8th November 2017. By then, the time for setting aside the abatement order had already lapsed. In February 2024, the Applicant filed Misc. Civil Application No. 4297 of 2024 that was struck out on technicality on 1st July 2024, thereby paving the way to file the instant Application. Mr. Mandele observed further that the abatement order became known to the Applicant in February 2024. In the same month, Misc. Civil Application No. 4297 of 2024 was filed promptly, followed by the instant application. He considered the Applicant to be active and prompt in pursuing his rights. He was fortified by the decision of this Court in Yahaya Anwar Abdallah & 18 others vs. Mtemi Naluyaga & Another, Civil Case No. 184 of 2021, where it was observed that the right of action accrues from the time when the party becomes aware of the matter in issue. Based on that, the learned counsel implored this Court to allow the Application. Having dispassionately considered the submissions by the learned counsel, the question before me is whether there are justifiable reasons warranting the grant of this Application. In the case of Lyamuya 3 Construction Company Ltd vs. Board of Registered Trustee of Young Women's and Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 513 (3 October 2011), the Court of Appeal laid down factors to be considered before enlarging time thus; (i) The Applicant must account for all the period of delay; (ii) The delay should not be inordinate; (iii) The Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take (iv) If the court feels that their other sufficient reasons, such as the evidence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. Guided by the above position, it is high time that I determined this Application. It is a matter of law that for this Court to enlarge time, a “good cause” must be established. Conversely, the definition of "good cause" has not been explained in any rule or Act. That, it would appear, was not accidental. The respective power being purely discretional and equitable cannot apply identically in all circumstances, and as such, the categories of good cause are never closed. In Masatu Mwizarabi vs. Tanzania Fish Processing Ltd, Civil Application No. 13 of 2010 (unreported), the Court observed that "good cause” is a relative one and is dependent upon the party seeking 4 an extension of time to provide the relevant material for the Court to rely on. Admittedly, case law has established some principles to be considered in determining the existence or non-existence of good cause. For instance, in Tanga Cement Company Limited vs. Jumanne D. Massanga and Amos A. Mwalwanda, Civil Application No. 6 of 2001(unreported), the Court observed that what amounts to sufficient cause has not been defined. From decided cases, several factors have to be considered, including whether or not the application has been brought promptly, whether there is any explanation for the delay offered, and whether there is proof at the lowest of the diligence on the part of the Applicant. Equally, Courts are urged not to limit themselves to the reasons for the delay when determining the Application for an extension of time. The Courts should consider the result or implication of granting or not granting the Application. The application may be refused if it serves no purpose or is an abuse of the Court process (see Reuben Lubanga vs. Moza Gilbert and 2 Others, Civil Application No. 533 of 2021, Court of Appeal of Tanzania at Dar es Salaam (Unreported). Indeed, item 12 of part III of the schedule of the Law of Limitation Act prescribes 60 days for setting aside an order of 5 abatement. According to the records, an abatement order was issued on 8th November 2017. To date, approximately seven years have passed since the order was issued. According to Applicant, the Court records were supplied to him in February 2024, and having perused them, he noted that the suit abated on 8th November 2017. By then, the time for setting aside the abatement order had already lapsed. In February 2024, the Applicant filed Misc. Civil Application No. 4297 of 2024 that was struck out on technicality on 1st July 2024, hence the instant Application. In my opinion, the reason for the delay provided for the Applicant is sufficient to warrant the grant of this Application. First, he was appointed as administrator in September 2022. Second, he learned about the abatement order in February 2024 and promptly filed Misc. Civil Application No. 4297 of 2024, which was struck out on technicality on 1st July 2024. In the circumstances, this Application is meritorious, and I proceed to grant it. That said, the Application is hereby granted with no order regarding costs. The Applicant is to file the Application for setting aside the abatement order within fourteen (14) days from today. It is so ordered. Right of appeal explained. 6 DATED at DAR ES SALAAM this 3rd April 2025. H.S. MTEMBWA JUDGE 7