20051017 TZCA Dar es Salaam2

i~U:.-~·1\;,, :. it',. Tti'IE COURT OF APPEAL OF TANZA1NIP. AT DAR ES SALAAM CIVIL APPLICATION NO. l57 OF 2004 In the Matter o1f Intended Appeod BETVVEEN TANZANIA RAXL\f\!AY CORP . ... APPLICANT AND MRS AUGUSTA UPENDO RVVEYEMAMU . ... RESPOND[NT (Application for Extension of Tine vvcthin vihich to Institute an Appeal) @ubeshi, J.) th dated the 24 day of September, 2002 in CivH Case No. 169 of 1996 RULING RAMADHANI, J .A.: The applicant, Tanzania Railway Corporation, being represented by Mr. Muhango, learned advocate, was seeking an extension of time within which to institute an appeal after the expiration of the prescribed sixty days on 02/11/04. Tl1e application is supported by affidavits of Mr. George Kilindu, learned counsel, and one Francis Matage, a clerk of Mr. Kilindu. What the two affidavits portray is that Mr. Kilindu left for China on business on 12/09/04 and on 14/09/04 a copy of a certificate_ of delay was received by Francis Matage who overlooked to bring it to the attention of Mr. Kilindu upon his return on 05/10/04. However, on 08/11/04 Mr. Kilindu received summons to appear before the Registrar to receiv~ a ruling in Civil Application No. 106 of 2004 for 2 stay of execution. That notice caused Mr. Kilindu to discover that the certificate of delay had already been issued. Hence he filed this application on 17/11/04. On behalf of the respondent was Mrs. Genevieve N. Kato, learned counsel, who said in her affidavit and also in Court that the forgetfulness of an advocate's clerk is not sufficient cause to grant extension of time. I agree with this contention. There have been a number of occasions when this Court has not been persuaded with such a reason as the forgetfulness or negligence of a clerk of an advocate. I have not been able to lay my hands on any such case. But if an error of advocate is not sufficient cause it is not difficult to see that the fault of a clerk of an advocate cannot be. Even if, for the sake of argument, I accept that Matage is the cause of this situation, Mr. Kilindu has not demonstrated a speedy reaction to remedy the fault. He received the summons on 08/11/04 but the notice of motion for this application was signed two days later, on 10/11/04 and it was lodged on 17/11/04, that is, nine days later. Admittedly, Mr. Kilindu in his counter-affidavit has said, that the necessary fees were paid on 16/11/04 and has attached a photo copy of the GRR bearing that date. But one wonders why the fees were paid six days after the notice of motion was signed. Surely that does not send a message of a realization of a fault and a desire to rectify it. 3 Because of the reasons I have given above, I dismiss this application with costs. DATED at DAR ES SALAAM this 1th day of October, 2005. A. S. L. RAMADHANI JUSTICE OF APPEAL. I certify that this is a true copy of the original. ~---·-- / -,/ II- " p E:----;- -1 , _,.,..,,.~.,_., II .'-- _/ < .>(.. (S.A.~RA) SENIOR DEPUTY REGISTRAR