CIVIL APPEAL NO 5 of 2023THEUWA LIJEMBE NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CIVIL APPEAL NO.5 OF 2023 (Originating from Ruangwa District Court at Ruangwa in Misc. Civil Application No.2 of2022) THEUWA ABED LIJIMBE...................... APPELLANT VERSUS HASSAN SELEMANI UNGOO............ ....... RESPONDENT JUDGMENT Date of Last Order: 21/9/2023 Date ofJudgement: 29/9/2023 LA LTAl KA, J, The appellant herein, THEUWA ABED LIJIMBE is dissatisfied with the decision of the District Court of Ruangwa at Ruangwa, in Misc. Civil Application No.2 of 2022. She has lodged this appeal comprising three grounds of appeal, which I take the liberty to reproduce herein below: Page 1 of 8 1. That the Honourable District Court ofRuangwa erred in law and in fact by holding that the appellant failed to give justifiable reasons for the extension of time to file an appeal out of time. 2. That the Honourable District Court ofRuangwa erred in law and in fact by failing to see that the sickness of a dose relative, like a father-in- law, is a justifiable reason for the extension of time to file an appeal out of time. 3. That the Honourable District Court ofRuangwa erred in law and in fact by failing to see that the extension of time could have been granted on the ground of illegality, considering the fact that the Primary Court of Ruangwa Town had no jurisdiction to hear matters from Mnacho Ward, where there is also a primary court. When the appeal was called for hearing, both parties appeared in person, unrepresented. This being a rather technical appeal, none of the parties had substantial issued to add to the grounds of appeal. They left it to this court to examine the records in light of the grounds of appeal and determine the merits of the appeal if any. To appreciate the appeal, a brief historical and contextual backdrop is considered important. On 8/7/2022, the respondent instituted Civil Case No. 51 of 2022 at the Primary Court of Ruangwa at Ruangwa against the appellant and his co-defendant, who is not part of this matter. The Page 2 of 8 respondent claimed TZS. 1,000,000/= against the appellant and his co­ defendant jointly and severally. It was alleged that on 07/07/2021, the appellant and his co-defendant went to the respondents home and asked for a loan of TZS. 1,000,000/= with an agreement to pay back the same after one month. Unfortunately, the defendants failed to honor their promise, which is why the matter was registered at the trial court. The suit was heard by the trial court, and on 19/7/2022, it decided in favor of the respondent. The trial court further stated that the respondent had only proved his claim of TZS. 500,000/= and not TZS. 1,000,000/=. Moreover, the matter was decided in the respondent's favor without costs. Aggrieved by the decision of the trial court, the appellant decided to lodge his application to the District Court of Ruangwa vide Misc. Civil Application No. 2 of 2022. In that application, the appellant prayed for the District Court of Ruangwa to grant him an extension of time so that he could challenge the decision of the trial court in Civil Case No. 51 of 2022. The application was by way of Chamber Summons, which was supported by an affidavit. The main reason advanced by the appellant for his Page 3 of 8 application was attending to his sick father, who later died, from the date when the judgment was delivered to the time he filed his application. Furthermore, the appellant advanced another reason that during the time of taking care of his sick father and later dealing with burial ceremonies and other traditional protocols of his deceased father, he failed to engage in economic activities. He insisted that due to the situation he faced, he could not generate any income that could assist him in filing his appeal on time. The District Court heard the application and denied granting the extension of time sought by the appellant. The reasons advanced by the District Court in refusing to grant the extension of time were twofold. One, the appellant failed to state the type of disease his father was suffering from. Two, the learned Magistrate appears to have based her refusal on Rule 4(1) of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Pules, G.N. No. 312 of 1964. Having carefully examined the lower court records, I have only one issue for determination namely: Whether the learned Magistrate exercised her discretion judiciously. It is trite law that an application for extension of time is entirely within the discretion of the court to grant or not. Furthermore, an extension of time may only be granted where it has been sufficiently Page 4 of 8 established that the delay was due to sufficient or good cause. In a persuasive decision of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2015] eKLR, the Supreme Court of Kenya had this to say: "... it is dear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for the delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favor of the applicant." Moreover, the Court of Appeal of Tanzania in Rose Irene Mbwete vs. Phoebe Martin Kyomo (Civil Application No. 70 of 2019) [2023] TZCA 111 (10 March 2023) laid the groundwork on how discretion should be exercised. The Court at page .11 held: "Therefore, as a matter ofgenera! principle, it is in the discretion of the Court to grant or not to grant an extension of time. However, that discretion must be exercisedjudiciously, according to the rules of reason andjustice, and not permit private opinion or arbitrariness." Page 5 of 8 It is noteworthy further that in our jurisdiction, extension of time to either appeal or make an application for revision or review may be granted upon good or sufficient cause being advanced by the person applying for it. To date, our law does not define what amounts to good/sufficient cause. However, in the case of Regional Manager, TANROADS Kagera v. Ruaha Concrete Company Ltd, Civil Application No. 96 of 2007 (unreported), it was held: "Sufficient reasons cannot be laid down by any hard and fast rule. This must be determined in reference to all the circumstances of each particular case. This means the applicant must place before the court materia! which will move the court to exercise itsjudicial discretion in order to extend the time." In the case at hand, the appellant advanced two reasons for her delay in lodging the appeal: the sickness of her father and eventually his death. After his death, she went through the burial ceremony and other traditional protocols. I think the learned trial Magistrate needed to consider how the appellant struggled to protect the right to life of her deceased father and not take her personal assumptions. Page 6 of 8 This court is of the view that the appellant, as a human being characterized by the genes of humanity, was trying to save her father's life. Taking care of a sick person involves the use of economic resources, time, and the mental health of the family or individual concerned. Therefore, this court is fortified that the District Court of Ruangwa did not exercise its discretion judiciously, I am inclined to add albeit in passing that providing information on the type of disease the deceased suffered was an attempt by the court to infringe on the right to privacy of the deceased person. The records on the history of the late father's diagnosis could not be given to the appellant because they did not belong to her. Therefore, the reasoning provided by the learned Magistrate amounted to a misuse of her discretion in granting the application. These demands should be avoided in the advent of policy and legislative attempts to enhance protection of privacy in our country. In the upshot, I allow the appeal. The trial court is directed to strive to determine matters brought before it on merit. This is the only way of avoiding never ending litigation. I make no order as to costs. It is so ordered. Page 7 of 8 E.I. LALTAIKA JUDGE 29/09/2023 This ruling is delivered under my hand and the seal of this court on this 29th day of September 2023 in the presence of both parties who have appeared The right to appeal to the Court of Appeal of Tanzania fully explained. E.I. LALTAIKA JUDGE 29/09/2023 Page 8 of 8