VUMILIA ISRAEL KIMAMBO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF DAR ES SALAAM AT DAR ES SALAAM CIVIL APPLICATION NO. 7812 OF 2024 VUMILIA ISRAEL KIMAMBO (As Legal Representative of Sadikiel Zebedayo Meta) ...................................................…. APPLICANT VERSUS MARTIN MATIKU NYETIKA ……..……………….……………..…… RESPONDENT (Application for extension of time to file review from the ruling of this Court (Pomo, J) dated 30th day of November 2023 in Execution No. 44 of 2022) RULING 3rd and 24th March 2025 KISANYA, J.: This application is brought under sections 14(1) and 19(2) of the Law of Limitation Act [Cap. 89, R.E. 2019] and section 95 of the Civil Procedure Code [Cap. 33, R.E. 2019]. The applicant seeks an order for extension of time within which to file a review of the ruling and drawn order of this Court (Pomo, J) dated 30th November 2023 in Execution No. 44 of 2022. The applicant further prays that the costs of this application be borne by the respondent, and that the Court grants any other orders it may deem appropriate. 1 Supporting the application is an affidavit sworn by Henry Kishaluli, who acted as the Advocate for the applicant in Execution No. 44 of 2022, which is the subject of this application. The affidavit outlines the reasons for seeking the extension of time and the circumstances surrounding the delay in filing the review. The factual foundation of this application, as set out in the supporting affidavit, is as follows: The applicant, being the decree holder in Land Case No. 64 of 2016, sought execution by way of arrest and committal of the judgment debtor (respondent) to civil prison. This application, registered as Execution No. 44 of 2022, was struck out by this Court on 30th November 2023. This decision was based on a ground raised suo motu by the Court, which held that it was functus officio in determining the matter, given that a prior execution application (Execution No. 17 of 2018) concerning the same decree had been dismissed for want of prosecution. The applicant avers that despite having applied for a copy of the ruling and drawn order on 1st December 2023 and making follow-ups thereafter, he only discovered its availability on 27th February 2024 when he found it published on the TanzLii website and downloaded it. Given that the statutory period for filing an application for review had already lapsed, 2 the applicant filed the present application, stating that the delay was beyond his control. As the respondent failed to appear even after service through publication, the hearing proceeded ex-parte. Mr. Amon Rwiza, learned Advocate, appeared virtually for the applicant. In his submission, Mr. Rwiza fervently urged the Court to grant the application for extension of time. Referring to the affidavit in support of the application, he submitted that the delay was not attributable to any fault or negligence on the part of the applicant but was occasioned by the court’s own process. The learned Counsel pointed out that the ruling, which was necessary for the filing of the review, was not served to the applicant despite several follow-ups. According to him, it was only on 27th February 2024 that the applicant came across the ruling on Tanzlii, by which time the statutory period for filing the review had lapsed by approximately 73 days. He also contended that the court vacation from 15th December 2023 to 15th January 2024 limited access to certain court services. Mr. Rwiza further submitted that the review application has a strong likelihood of success as the Court erroneously ruled itself functus officio without considering that the prayers in the previous and were distinct from 3 the application before it. With these submissions, the learned counsel firmly reiterated his plea for the application to be granted. At this point, it is essential to note that under item 3, Part III of the Third Schedule to the Law of Limitation Act (supra), any application for the review of a decree, judgment, or order under the Civil Procedure Code [Cap. 33, R.E. 2019] must be filed within 30 days from the date of the decision being challenged. Given that the impugned ruling was issued on 30th November 2023, the deadline for filing the review application expired on 30th December 2023. However, this application for an extension of time to file the review was only filed on 20th March 2024. It is also important to state that the legal authority for the Court to extend time to file application for review is found in section 14(1) of the Law of Limitation Act, which the applicant has cited in this application. This section states that: “Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application.” 4 From the above section, it is evident that the court has discretionary power to extend time, and the applicant is required to establish reasonable or sufficient cause for such an extension. The phrase "reasonable or sufficient cause," however, has not been strictly defined under the Law of Limitation Act. In line with the reasoning in Alliance Insurance Corporation v. Arusha Art Limited, Civil Application No. 512/2 of 2016 (unreported), where a comparable provision was considered, this is because discretion cannot be fixed by strict rules, but is determined based on the specific circumstances of each case. Similarly, in Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (Unreported), the Court of Appeal provided the factors or guidelines to assess whether good cause has been shown, in the following terms: "On authorities however, the following guidelines may be formulated: (a) The applicant must account for all the period of delay; (b) The delay should not be inordinate; (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and 5 (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. In this case, the applicant has presented two grounds for seeking an extension. The first is the delay in obtaining a copy of the impugned ruling, and the second is the presence of glaring illegality in the ruling that is subject to review. Starting with the second ground relating to the glaring illegality of the ruling in question, it is an established legal principle that a claim of illegality in the impugned decision constitutes sufficient ground for an extension of time, even in the absence of a reasonable explanation for the delay. The primary purpose of granting such an extension is to ensure that the court has the opportunity to correct the identified anomaly. This principle was echoed in VIP Engineering and Marketing Limited and Two Others vs. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7, and 8 of 2006, and TANESCO vs. Mufungo Leonard Majura and 15 Others, Civil Application No. 94 of 2016 (both unreported). However, for illegality to be a valid ground for an extension of time, it must be manifest on the face of the record as affirmed in Ministry Of Defence, National Service Vs Devram Vallambhia [1992] TLR 387 6 Dimension Data Solutions Limited vs Wia Group Limited and 2 Others, Civil Application No. 218 of 2015 (TanzLII) In the instant matter, the affidavit at paragraph 16 alleges that the Court wrongly held that it was functus officio without taking into account that the matter before it was different from the earlier case. It is also asserted in paragraph 17 that the Court overlooked the fact that an execution application must proceed until it has been fully executed. However, in my considered view, these claims do not meet the threshold of illegality on the face of the record to justify an extension of time. Instead, they require further scrutiny and legal argument to establish any alleged illegality. Turning to the first ground, which concerns the delay in obtaining a copy of the ruling, section 19(2) of the Law of Limitation Act provides that the time required for obtaining a copy of the decision on which an application for review is founded shall be excluded. The applicant asserts, as confirmed by Annexture KS-3 to the affidavit, that he submitted a letter to this Court seeking a copy of the ruling and drawn order just a day after the delivery of the impugned ruling. He has further detailed his persistent efforts to follow up on the matter until he eventually discovered the ruling posted on TanzLII, on 27th February 2024. 7 As the record does not reflect that the copies of the ruling and drawn order were provided to the applicant, this Court is unable to determine precisely when the time for filing a review began to run against him under section 19(2) of the Law of Limitation Act. Nonetheless, in the interest of justice, I find it appropriate to consider that the applicant has accounted for the delay until 27th February 2024, when he noticed, accessed, and downloaded the ruling from the TanzLII website. The applicant further explains that, upon downloading the ruling, he spent 13 days making efforts to obtain a certified copy of the ruling, with the date of extraction, but to no avail. According to him, the remaining time was dedicated to the preparation and submission of this application. Given the circumstances of this case, I am convinced that the applicant has sufficiently accounted for the delay and demonstrated the necessary steps taken to obtain the ruling, which was an essential document for filing the review. Consequently, I find that the applicant has advanced reasonable or sufficient cause, warranting the Court’s exercise of its discretionary power to extend the time for filing the review. In the upshot of the above, the application is granted, and the applicant is given thirty (30) days from the date of this ruling to file the review against the ruling of this Court in Execution No. 44 of 2022. 8 Considering that the delay was not caused by the respondent, each party shall be responsible for its own costs. DATED at DAR ES SALAAM this 24th day of March 2025. S.E. KISANYA JUDGE Delivered via virtual court system this 24th day of March 2025, in the presence of Mr. Amon Rwiza, learned Advocate for the applicant, and Ms. Zawadi-RMA, and in the absence of the respondent. S.E. KISANYA JUDGE 24/03/2025 9