CIVIL APPLICATION WAMBURA MARWA 2

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA CIVIL APPLICATION NO. 13614 OF 2024 REF NO. 202406101000013614 {Arising from the decision of the District Court of Tarime at Tarime in Civil Appeal No. 4 of 2015} BETWEEN WAMBURA MARWA .......................................... APPLICANT VERSUS ISAYA MWITA CHORWA........................................... RESPONDENT RULING 2^ & 2#* March, 2024 M, L, KO MBA, J, The applicant herein filed the application at hand beseeching this court to grant him extension of time from which he can appeal against the decision of the District Court of Tarime in Civil Appeal No. 4 of 2015 which delivered on 31st July, 2015 before K. T. Mushi - SRM. The application was filed by way of chamber summons premised under Section 14 (1) of the Law of Limitation Act [CAP 89 R.E 2019] and Section 25 (b) of the Magistrate's Court Act [CAP 11 R.E 2019] and supported by an affidavit sworn by the applicant himself. The Page 1 of 6 respondent did not file counter affidavit to contest the application, instead he filed a reply to memorandum of appeal. As extracted from the applicant's affidavit, a brief background of this matter can be summarized as follows; That, the applicant herein was the appellant in Civil Appeal No. 4 of 2015 in which the judgment was delivered in his favour. The applicant was not supplied with the copy of the judgment for more than three years and later on the judgement was changed in favour of the respondent. Now, the applicant is determined to appeal against the said decision of the District Court of Tarime but he is out of prescribed time hence the present application. In his affidavit, the applicant stated that his delay was not gross negligence but was caused by the District Court of Tarime failure to supply him with the copy of judgment in time and that all the time he was prosecuting Civil Application No. 30 of 2018. During the hearing of this application, both parties appeared solo, fended for themselves. The applicant submitted that the District Court denied to supply him with the copy of judgment until year 2017 and by that time he obtains the Page 2 of 6 judgment, the execution was filed and already completed. Applicant prayed the court to grant him his application as the respondent did not file counter affidavit to contest the same, instead he filed memorandum of appeal. As there is no counter affidavit filed by the respondent, the court needed him to submit on the point of law only if any. The respondent did not have any point of law to counter with rather than he submitted on the facts which I will not consider them. Considering the affidavit lodged and submission by the applicant, the court has one duty to determine whether the applicant registered sufficient reason (s) to move this court to grant him extension of time. Since the respondent did not file counter affidavit to contest the application, it means that the averments in applicant's supporting affidavit are uncontroverted. See the case of Alhaji Abdallah Talib vs Eshakwe Ndoto Kiweni Mushi [1990] T.L.R 108 and Martin D. Kumalija & Others vs Iron & Steel Ltd (Civil Application No. 70 of 2018) [2019] TZCA 234 (5 March 2019). However, failure by the respondent to file counter affidavit is not a guaranteed fact that the application will be granted. See Dominc Yohana vs Salma Mshite (Civil Application 120 of 2020) [2021] TZCA 216 (31 May 2021). Page 3 of 6 It is trite law that in order a person to succeed in the application of this nature, he has to furnish the court with the good/sufficient reasons for his/her delay. And again, it is trite law that the factors to be considered in determining the good/sufficient reasons depends on the nature and circumstances of each case. 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. 372/01/2018, CAT at Dar Es Salaam (Unreported). Yet again, it has been ruled out that account for all days of delay is one of the paramount factors to consider in granting extension of time. See Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011), Attorney General vs Emmanuel Marangakisi (Civil Application No. 138 of 2019) [2023] TZCA 63 (24 February 2023) and Elius Mwakalinga vs Dimina Kagaruki & Others (Civil Application No 120/ 17 of 2018) [2019] TZCA 650 (22 May 2019). In the latter case, the Court of Appeal cited with approval its decision in the case of Bushiri Hassan vs Latifa Lukio Mashayo, Civil Application No. 3 of 2007 that; Page 4 of 6 "... a delay o feven a single day has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken." In the case at hand, the applicant in his affidavit stated that his delay was not gross negligence but was caused by the District Court of Tarime failure to supply him with the copy of judgment. He stated that he obtained the copy of the judgment after more than three years, although in his submission he stated that he obtained the copy of judgment in 2017 which is two years from the year 2015 in which the impugned decision was delivered. Although the applicant averred that he was not negligent, but I see contrary. I am of the views that the applicant was too negligent for failure to obtain his copy of judgment for more than three years as he claimed. It is surprising to see the applicant waiting for three years to obtain a copy of judgment without taking any action. It is my opinion that,,if he thought that he was being denied a copy of judgment for all that time he should have report the matter to the higher judicial administration for assistance. Page 5 of 6 Again, the applicant submitted that he used all time in prosecuting Civil Application No. 30 of 2018, but he failed to account for the days since he obtained the copy of the judgment in 2017 as submitted. Furthermore, the applicant failed to explain to this court on when did that Application No. 30 of 2018 filed and finalized in court as I found it is impossible for the 2018 case to end in 2024. In the light of the above, I am of the humble opinion that the applicant has failed to demonstrate good and sufficient cause for the delay. Thus, I dismiss the application for want of merit. It is so ordered. M. L. KOMBA Judge 28th June, 2024 Page 6 of 6