RULING SYABO MWAKANYUKI final

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA MISCELLANEOUS CIVIL APPLICATION NO. 19353 OF 2024 CASE REFERENCE NO. 202408111000019353 SYABO B. MWAKANJUKI ............................................................ APPLICANT VERSUS FIDEL MUFUMYA ..................................................................... RESPONDENT RULING 19th November 2024 & 18th February 2025 NONGWA, J. The applicant has sought extension of time to appeal in Application No. 02 of 2023 in the District Land and Housing Tribunal for Kyela (the DLHT). It is made under section 41(2) of the Land Disputes Courts Act [Cap 216 R: E 2019] and supported by the applicant’s affidavit. The respondent filed counter affidavit opposing the application. As discerned in the affidavit, the respondent successfully sued the applicant in the DLHT vide application No. 2 of 2023, the judgment was delivered on 22/12/2023. It is averred that the applicant requested for necessary document and on 05/1/2024 was supplied with judgment and 15/1/2024 proceedings. Before he processed the appeal, on 20/1/2024 experienced some dizziness and on 7/2/2024 was sent at K’s hospital and was further told to go to Benjamini Mkapa Hospital. He alleges 1 further that the judgment of the tribunal is marred with irregularities as a seller was not joined to the suit and the matter was timed barred. The respondent through his counter affidavit disputed the reasons advanced by the applicant save for parties and date of delivery of judgment in the tribunal. On the hearing day, the applicant was represented by Ms. Beatrice Kessy, learned advocate. The matter was heard ex-parte against the respondent. The applicant prayed to file written submission. In her submission, Ms. Beatrice submitted that delay was due to sickness as disclosed under paragraph 8, 9 and 10 of the affidavit and exhibited by annexture SM2 which show the applicant was sick from 7/2/2024 to 30/6/2024. She argues that sickness is one of the reasons for extension of time, she supported the argument with the case of Loshilu Karaine & Others vs Abraham Melkizedeck Kaaya, Civil Appeal No. 534 of 2020 [2024] TZCA 93 (22 February 2024; TanzLII). Another reason advance is irregularities which counsel said is pleaded under paragraph 12 of the affidavit. He referred to the case of Lyamuya Construction Co. Limited vs Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4 (3 October 2011; TanzLII) on 2 position of the law that illegality and irregularity in the decision are among the sufficient grounds for extension of time. I have dispassionately considered the application documents and submission by the applicant. The point for my determination is whether the applicant has advance sufficient cause to grant extension of time. The position of the law is that an application for extension of time is entirely in the court's discretion to grant or refuse it. However, those discretionary powers must be judiciously exercised according to the rules of reason and justice, not personal whims. Although there is no universal definition of what constitutes good cause, in exercising such powers, the Court is required to consider the prevailing circumstances of the particular case guided by a number of factors such as the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent and whether there is a point of law of sufficient importance such as illegality of the decision sought to be challenged. See Abdulrahman Mohamed Ally vs Tata Africa Holdings T. Limited, Civil Application No. 166 of 2021 [2023] TZCA 60 (24 February 2023; TanzLII) and Lyamuya Construction Co. Ltd (supra). The applicant’s reason for delay is pegged on health problem and illegality. Starting with health problem as pleaded under paragraph 7 3 through 10 of the affidavit. In this jurisdiction it is accepted that sickness in a fit case may amount to good cause for delay to do certain act within the prescribed time. See Kulwa Lutambi vs Irene Sayi Goreshi, Civil Appeal No. 346 of 2020 [2024] TZCA 60 (20 February 2024; TanzLII). I have scrutinised evidence on sickness, the said letter was issued on 22nd July 2024 tell that on 7th February 2024 attended at that hospital and later admitted for one week up to 30th June 2024. Further that the applicant was managed for five months as outpatient and inpatient. In the case of Murtaza Mohamed Raza Virani & Another vs Mehboob Hassanali Versi, Civil Application No. 448 of 2020 [2023] TZCA 6 (7 February 2023; TanzLII) the court stated; ‘Given sickness is a condition which is experienced by a sick person and since the 1st applicant said due to his sickness, he failed to serve the respondent in time and has attached evidence to prove that he was sick then I see no reason to doubt his condition at that time.’ The information in the medical chit shows the applicant was attending hospital from 7th February 2024 to 30th June 2024. In those circumstances sickness has been established and excused the period from 20th January to 30th June 2024. 4 On accounting each day of delay, it is not disputed that until 15/1/2024 the applicant had obtained all necessary documents to institute the appeal which was to be filed within forty-five days from the date of obtaining judgment and decree. That means the appeal was to be filed on or before 29th February 2024. Once the period from 20th January to 30th June, 2024 is excluded, it means, the applicant has to explain the period between 30th June to 31st July, 2024 when this application was filed. In my computation this application was filed within thirty days well within time allowed to appeal. In the circumstance I find and hold that thirty days used by the applicant to file this application after regaining from sickness is inordinate considering that is within time allowed to appeal. Another reason is illegality in the impugned judgment, the legal position of law is clear that if an alleged illegality is established, it is sufficient to justify the court in extending the time. The court clearly stated this in the case of Principal Secretary, Ministry of Defence and National Services vs Durvam Valambhia [1992] TLR 387 held that; 'In our view, when the point at issue is one alleging the illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, 5 to take appropriate measures to put the matter and the record right.’ A more elaborative decision on the alleged illegality for the court to extend time was given in the case of Lyamuya Construction Co. Ltd (supra) when the court held; ‘Since every party intending to appeal seeks to challenge a decision either on points of law or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a general rule that every applicant who demonstrate that his intended appeal raises points of law should as of right, be granted extension of time if he applies for one. The Court there emphasized that such point of law, must be that "of sufficient importance" and I would add that it must also be apparent on the face of the record, such as the question of jurisdiction; not one that would be discovered by a long - drawn argument or process.’ (Emphasis supplied) Under paragraph 12 of the affidavit, the applicant has stated a necessary party that is a seller was not joined and that the suit was time barred. In her submission Ms. Beatrice did not connect the points to the law she cited. Having studied the law, the point raised are not illegalities on the face of record of the impugned judgment, it requires long drawn argument and process to discover it. They can only be discovered after perusing pleadings and evaluating evidence in record. 6 In Salum Rashid Kingalangala vs Republic, Criminal Appeal No. 192 of 2021 [2023] TZCA 17704 (3 October 2023; TanzLII) the court after citing the case of Kabula Azaria Ng'ondi and Others vs Maria Francis Zumba and Another, Civil Appeal No. 174 of 2020 [2023] TZCA 162 (30 March 2023; TanzLII) and Charles Richard Kombe vs Kinondoni Municipal Council, Civil Reference No. 13 of 2019 [2023] TZCA 137 (23 March 2023; TanzLII).stated that; ‘We have sufficiently demonstrated how the principle of illegality has evolved and how it has been qualified over the years. We agree with Ms. Thomas that Mr. Sosthenes' nibbling of the proceedings cannot constitute illegalities. There could be decisional errors here and there but they are so small and insignificant that in comparison they are nowhere close to the illegality in the Principal Secretary case (supra). Allegations such as contradictions among witnesses, or the reading of the charge or grant of bail are as surprising as they are feeble and out of context. To pass such allegations off as constituting illegalities will lead to a very absurd situation which we must avoid.’ From the above, the allegation that there is failure to join the seller and the matter being timed barred, in the circumstances of this case cannot be discovered without looking on the pleadings filed and evidence recorded by the tribunal. At that moment, the enumerated point ceased to be illegality but may be decisional error. 7 Flowing from the above, since the applicant has managed to establish each day of delay, I grant the application and the applicant is given fourteen days to file the appeal. Owing to the circumstance of this application, I order no costs. V.M. NONGWA JUDGE 18/5/2025 Dated and Delivered at Mbeya this 18th February 2025, in presence of Ms. Salome Mwakalonge and Mr. Saimon Mwakolo learned counsels for the Applicant and Respondent respectively. V.M. NONGWA JUDGE 8