stanbic bank t ltd vs keith george maginga administrator of estate of the late daniel maginga 2023 tzhccomd 217 12 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO, 69 OF 2023 STANBIC BANK TANZANIA LIMITED........................APPLICANT VERSUS KEITH GEORGE MAGINGA ADMINISTRATOR OF ESTATE OF THE LATE DANIEL MAGINGA....... RESPONDENT RULING A.A. MBAGWA, J This is a ruling pertaining to application for extension of time within which to file a notice of appeal. The application is made by way of chamber summons under section 14 of the Law of Limitation Act and it is supported by an affidavit sworn by SIKOI LOISHENYE. In contrast, the application was resisted by the respondent through a counter affidavit of Roman. S.L. Masumbuko, the learned counsel for the - respondent. It is contended by the applicant that the applicant is determined to challenge the ruling and drawn order of this Court in Commercial Case No. 103 of 2015. According to the applicants affidavit, the ruling was delivered on 13th December, 2018 wherein the Court dismissed the suit under Order i XVII Rule 3 of the Civil Procedure Code for lack of merits as there was no evidence produced. The applicant was aggrieved hence he filed a revision in the Court of Appeal via Civil Application No. 55/16 of 2019 to challenge the said ruling. However, when the application was pending hearing, the applicant realized that the move taken was not proper as she ought to prefer an appeal instead of revision. Consequently, on the 3rd day of May, 2023 the applicant prayed to withdraw the application and the same was marked withdrawn. On the adversary, the respondent contested the application stating that the applicant has not advanced sufficient cause to warrant extension of time. The respondent stated that there is no illegality in the decision sought to be impugned as such, the application is unmerited according to the respondent. When the matter was called on for hearing, Mr. Daudi Zakaria, learned counsel appeared for the applicant whereas the respondent was represented by Nobert Tarimo, learned counsel. Mr. Daud Zakaria adopted the applicant's affidavit, reply to counter affidavit and skeleton arguments which he had earlier on filed. He then prayed the court to consider the grounds contained in the depositions as well as the skeleton arguments and finally grant the application. In 2 addition, Mr. Daudi Zakaria, upon probed by the court, submitted that his client would be ready to compensate the respondent to a tune of Tanzania shillings Three Million (TZS. 3,000,000/=) as costs and inconveniences which he has incurred in prosecuting this application. In rebuttal, Mr. Nobert Tarimo, opposed the application stating that the applicant had failed to account for delay of seven days. He explained that the said Civil Application No. 55/16 of 2019 was withdrawn on 3rd day of May, 2023 but the present application was filed on 12th day of May, 2023 without any explanation on the span of seven days. Upon probed by the Court, Mr. Nobert Tarimo, told the court that, in case the court grants the application, his client should be paid at least Tanzania Shillings Three Million. I have keenly heard the rival submissions by the counsel and got occasion to canvass the depositions of the parties. It is settled that in determination of application for extension of time, the relevant question to determine is whether the applicant has demonstrated sufficient cause to warrant extension of time. It is a trite position of law that there is no fast and hard rule as to what constitutes sufficient cause for purpose of extension of time. According to the guidance developed by the court, a sufficient cause is determined 3 upon consideration of all the circumstances obtaining in a particular case. See Regional Manager, Tanroads Kagera vs. Ruaha Concrete Co. Ltd, Civil Application No. 96 of 2007, CAT at Dar Es Salaam. As such, court often has been taking into account various factors including length of delay involved, illegality, diligence, reasons for delay, the degree of prejudice, if any, that each party is likely to suffer, the conduct of the parties and the need to balance the interests of a party who has a decision in his favour against the interests of a party who has a constitutionally underpinned right of appeal. See Jaliya Felix Rutaihwa vs Kalokora Bwesha & Another, Civil Application No. 392/01 of 2020, CAT at Dar es Salaam, Paradise Holiday Resort Limited vs. Theodore N. Lyimo, Civil Application No. 435/01 of 2018, CAT at Dar Es Salaam and Ludger Bernard Nyoni vs. National Housing Corporation, Civil Application No. 372 of 2018, CAT at Dar Es Salaam. In the application at hand, it is clear that the applicant timely filed Civil Application No. 55/16 of 2019 in the Court of Appeal but later on realized that the course taken was incorrect hence she applied to withdraw the said Civil Application. It is on record that Civil Application No. 55/16 of 2019 was withdrawn on 3rdday of May, 2023 and the present application was filed on 12th day of May, 2023. This, in my view, exhibits that the applicant has been diligent to pursue her matter and she has no ill conduct 4 whatsoever as she sought to challenge the decision from the very beginning. Thus, considering the above facts vis a vis the factors for consideration as settled in the above decisions, I am inclined that the applicant has demonstrated sufficient grounds warranting extension of time. In the premises, I allow the application and the applicant is given ten days from the date of this ruling to file a notice of appeal. Ordinarily costs follow the event. However, this matter would be a bit peculiar. Whereas I am convinced that the applicant has exhibited sufficient cause, it is clear that the respondent has incurred costs and inconvenience at the instance of the respondent. As alluded to, the filing of this application was triggered by the withdrawal of Civil Application No. 55/16 of 2019 due to errors which were committed by the respondent. Since granting extension is the discretion of the court, I find it desirable to exercise my discretion to compensate the respondent the costs and inconveniences which may have suffered in the course of defending this application as suggested by Mr. NobertTarimo and conceded by Mr. Daudi Zacharia. This is in line with balancing the prejudice which the respondent may have suffered in terms of costs. Therefore, I order the applicant to pay the respondent a sum of Tanzania shillings three million (TZS 3,000,000/=) within thirty days from the date of this ruling. 5 I make no order as to costs of this application apart from the order of payment of TZS 3,000,000/=. It is so ordered. The right of appeal is explained. A.A, Mbagwa JUDGE 12/07/2023 6