YONA HUMAY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA MISC. LAND APPLICATION NO. 19040 OF 2024 (C/F High Court Land Appeal No 161 of2022, originally Land Application No. 4 of 2014 in the District Land and Housing Tribunal for Babati at Babati) YONA HUMAY................................................................................. APPLICANT VERSUS ELIZABETH LAWEI (As Administratrix of the Estate of the late JOSEPH URUGUTHU)............................RESPONDENT RULING 24/10/2024 & 22/11/2024 MWENDA, J: By way of a Chamber Summons, the applicant preferred this application seeking for extension of time to file a notice of appeal to the Court of Appeal of Tanzania against the decision of this Court in Land Appeal No. 161 of 2022. As per what is deponed under the affidavit filed in support of the application the lateness by the applicant was caused by applicants' sickness, death and mourning of his grandson as well as illegality. The application was preferred under Section 11(1) of the Appellate Jurisdiction Act, Cap. 14, R.E. 2019 of the Laws of Tanzania and is supported by an affidavit deponed by the applicant himself. The Respondent contested the application through a counter affidavit deponed by herself. Page | 1 At the hearing of the application, MR. OMARY BURHAN GYUNDA, learned advocate, appeared for the applicant, while the respondent was dully represented by MR. OMBENI KIMARO, also the learned advocate. Hearing of the application was by way of filling written submission and both parties filed their respective submission. Before delving into what was submitted by counsel for the parties in support and opposition of this application, I find it pertinent to briefly outline background information leading to the current Application as can be garnered from the record availed to this Court. The record reveals that the Applicant sued the Respondent before the District Land and Housing Tribunal for Babati at Babati in Land Application No. 4 of 2014 and the matter was adjudged in his favour. Aggrieved by that decision, the Respondent filed an application for extension of time, followed by an appeal before this Court in Land Appeal No. 161 of 2022, the same was ruled against the Applicant. He was dissatisfied and since he delayed in filing the notice of appeal to appeal to the Court of Appeal, the applicant preferred the present Application seeking enlargement of time by this Court. Both, in the Affidavit filed in support of the Application and in the submission in support thereof, the Applicant's main reason for the grant Page | 2 of this Application is anchored on three main reasons, one sickness, two the death and the mourning of his grandson and three, illegality. In his written submission Mr. GYUNDA submitted that in an application for extension of time the applicant must demonstrate and adduce good cause for his to be successfully. According to him the Applicant was suffering from pneumonia, gastroenteritis and amoebiasis and was admitted at the hospital from 11th to 13th July 2024 as per the medical chit marked Pl.He added in that even after the Applicant was discharged, he was still taking the medicines prescribed to him by the doctors, the act which he claimed that it hindered him from filing the notice timely. To cement the point, he referred this Court to the decision of Court in JOHN DAVID KASHEKYA VS THE ATTORNEY GENERAL, Civil ApplicationNo.107 of 2012. The other reason expounded by GYUNDA is that which is that the applicant was bereaved. He said that his grandson died on 17/7/2024 and was buried on 20/07/2024 as per exhibit P2. The learned counsel opined that the Applicants sickness and bereavement hampered the Applicant's conduct until the 20/7/2024 when he resumed to be in a normal condition, the moment when he looked for a lawyer, hence the present application. On the third point in support of this application the learned counsel submitted that, the impugned judgment is a result of an application for Page | 3 extension of time which is a res judicata as per the two copies of ruling that is exhibit P3. He stressed that since the Respondent does not object the existence of two applications then there is a serious point of law which to him, can be raised at any stage. He supported his position with the decisions of PENIEL LOTA VS GABRIEL & OTHERS [2003] TLR 312 and FELICIAN MUHANDIKI V. THE MANAGING DIRECTOR BARCLAYS BANK TANZANIA LIMITED (Civil Appeal No 82 of 2016) [2023] TZCA 101 (13 March 2023). He then rested praying this application to be allowed. While opposing this application, Mr. KIMARO submitted that the applicant's failed to adduce good and sufficient reasons as to why he did not file his notice of appeal from 15th June to 10th July 2024 when he was not sick and waited until three days had remained to file the notice of appeal. To support the point he referred this Court to the decision in LYAMUYA CONSTRUCTION COMPANY LIMITED VS BOARD OF REGISTERED TRUSTEES OF YOUNG WOMEN CHRISTIAN ASSOCIATION OF TANZANIA, Civil Application No. 2 of 2010 and concluded this part where in that the alleged sickness by the applicant was an afterthought as he stayed healthy for T1 days without taking any action against the impugned decision hence, negligence and apathy on his part. He however distinguished the case of JOHN DAVIS KASHEKYA (Supra) from the Page | 4 current case in that in this case the applicant was sick when he was within time as opposed to the cited case. Responding to the second ground regarding death and mourning, Mr. KIMARO stated that in the Affidavit the applicant deponed that his grandson died while in the submission he claimed it was his son who was dead. He referred it to as confusing and a submission/fact from the bar to which the court is not bound to deal with it. To support the point, he cited the case of NJAKE ENTERPRICES LIMITED VS BLUE ROCK LIMITED & ANOTHER, Civil Application No. 16/02 of 2020. Further to that Mr. KIMARO submitted that in an application for extension of time, the applicant must account for each day of delay that is from 14th July to 6th August 2024. According to him in a duration of 24 days, only 6 days which are accounted for by the Applicant. To support his stance, he referred this court to the case of WAMBELE MTUMWA SHAHAME VS MOHAMED HAMIS, Civil reference No. Of 2016, BUSHIRI HASSAN VS LATIFA MASHAYO, Civil Application No 3 of 2007, NJAKE ENTERPRICES LIMITED VS BLUE ROCK LIMITED & ANOTHER, Civil Application No 16/02 of 2020. On illegality, Mr. KIMARO submitted that the claimed illegality must be from the impugned decision which is Land Appeal No. 161 of 2022 and Page | 5 from a different ruling as the applicant is trying to raise. He said that the Applicant relinquished part of his claim and is now precluded to reinstitute the same. He supported this with the provision of law under Order XXXIII Rule 3, Section 10 of the Civil Procedure Code, Cap 33 R.E 2019 and the case of PEOPLE'S BANK OF ZANZIBAR VS NAUSHAD MOHAMED SULEIMAN (1999) T.L.R, JINNIN G.BRAMLY VS AND F CONTRACTORS LTD AND ANOTHER (2003) 2 EA 452, VILLAGE CHAIRMAN K.C.U MATEKA V. ANTONY HYERA (1988) T.L.R 188,ILELA VILLAGE COUNCIL V. ANSAAR MUSIMIN YOUTH CENTRE & ANOTHER, Civil Appeal No. 137 of 2019 which quoted with approval the case of THE REGISTRED TRUSTEES OF CHAMA CHA MAPINDUZI V. MOHAMED IBRAHIM MOHAMED AND SONS, Civil Appeal No 16 of 2008, EAST AFRICAN DEVELOPMENT BANK V. BLUE ENTERPRISES LIMITED, Civil Appeal No. 110 of 2009, BIN KULEB TRANSPORT COMPANY LIMITED VS REGISTRAR OF TITLE & 3 OTHERS, Civil Application No 522/17 of 2020,MS SAFIA AHMED OKASH (AS ADMINISTRATRIX OF THE ESTATE OF THE LATE AHMED OKASH) V. MS. SIKUDHANI AMIRI & 82 OTHERS, Civil Appeal No. 138 of 2016. He also distinguished the case of PANIEL LOTA (supra) in that the same emanated from an impugned decision while in the current case that is not the case. Page | 6 Mr. KIMARO also said that the alleged illegality must constitute what is termed to as appoint of law and must be apparent on the face of record as was established in the case of THE ATTORNEY GENERAL VS MICCO'S INTERNATIONAL(T) LTD & ANOTHER, Civil Application No. 495/16 of 2022. Moreover Mr. KIMARO opined that even if illegality is a ground for extension of time, the applicant ought to have accounted for each day of the delay which he has failed to do contrary to what was adumbrated in in MTENGETI MOHAMED V. BANDINA MACHA, Civil Application No344/17 of 2022. He finalized by submitting that the Applicant has failed to give sufficient reasons upon which this court can work upon and exercise its discretion in favour of the applicant. He prays that the application be dismissed. In a brief rejoinder, Mr. GYUNDA insisted that the delay was not in ordinate, but it was beyond the control of the applicant. He added that the counsel for the respondent did not dispute that the applicant was sick and after being discharged the applicant continue with the treatment until 26/7/2024 when he became stable. On the issue as to whether the applicant was bereaved by a son or grandson, the learned counsel said that proceedings are clear that it was grandson, the word "son" appeared in submission was just a typographical error. Thus, while referring this Page | 7 court to the case of DIMENSIA DATA SOLUTIONS LIMITED V. WIA GROUP LIMITED AND 2 OTHERS, Civil Application No. 218 of 2016 (Unreported) he said that condonation of delay is a matter of discretion of the court whereby length of the delay is no matter, acceptability of the explanation is the only criterion. Having briefly outlined the background and the submissions made in support and against Application, it is notable that the germane issue for determination hereto is whether the Applicant has adduced sufficient reasons for the craved extension of time. Notably, the grant of extension of time in an application such as this one is a matter of the discretion of the Court, which discretion must be exercised judiciously. The tests to be utilized by a court faced with such an application have existed for several years. In MBOGO V. SHAH [1968] EA page 63, several factors were highlighted to assist the court in deciding to either grant or refuse an extension of time. It was held that: "All relevant factors must be taken into account in deciding how to exercise the discretion to extend time. These factors include the length of the delay, the reason for the delay, whether there is an arguable case on the appeal and the degree of prejudice to the defendant if time is extended." Page | 8 Similarly, the Court of Appeal of Tanzania has also formulated guidelines to be considered in whether to grant or refuse the extension of time. See the case of LYAMUYA CONSTRUCTION COMPANY LIMITED (Supra). It is settled that where extension of time is sought, the applicant will be granted, upon demonstrating sufficient cause for the delay. Conversely, it is also well settled that the sufficient cause sought depends on deliberation of various factors, some of which revolve around the nature of actions taken by the applicant immediately before or after becoming aware that the delay is imminent or might occur. It is along settled that the court's discretion must be exercised judiciously as opposed to capriciousness based on material placed before it for consideration. In this application, the counsel for the Applicant referred this court to the case of JOHN DAVID KASHEKYA (supra) as relevant case law substantiating the ground of sickness. As per annexure Pl the Applicant informed this Court that, even before the statutory time to file the Notice of Appeal has lapsed, he felt sick as he was hospitalized then he was discharged where he continued with medication while at home. Whether or not sickness is a valid and good reason for grant of extension of time the same is inapplicable in this application since the time when the Applicant alleged to be sick, he was within the time limit hence no need to account for the same. Page | 9 The second reason relied by the Applicant is that he was mourning the death of his grandson. In this point, I am aware of the conflictions that in the affidavit, the applicant deposed that it was his grandson who passed on while in the submission he said it was his son, although in his rejoinder the learned counsel for the applicant alleged what is appearing in his submission in chief was a typographic error as it was meant to refer to the grandson and not his son. This court has considered this issue only to find it raising doubt as to whether the applicant was really bereaved with someone. And even if the court decided to believe that the applicant was bereaved by his grandson on 17/7/2024, still the pleadings revealed that burial was on 20/7/2024 thus counting from that day up to 06/08/2024 when this application was filed, there are 20 days unaccounted for. The learned counsel for the applicant submitted further that from 20/7/2024 up to 26/7/2024 he was looking for a lawyer who advised him on the way forward hence the present application, the fact that is contested by the counsel for the Respondent. I am aware that it is not expected for any party immediately after burial ceremony of a close relative to immediately resume his or her official duties pretending as if nothing has happened. However, each of those days must be accounted for. As it was held in the case of BUSHIRI Page | 10 HASSAN V. LATIFA MASHAYO, CIVIL APPLICATION NO. 3 OF 2007 (UNREPORTED) that: "Delay even of a single day has to be accounted for otherwise/ there would be no point of having rules prescribing periods within which certain steps have to be taken." Turning to the ground on illegality, it should be restated at the outset that, regardless as to whether a reasonable explanation has been given by the applicant to account for the delay, a claim of illegality of the impugned decision constitutes a sufficient cause for extension of time. However, the illegality in question must be that which raises a point of law of sufficient importance and the same must be apparent on the face of record not one that would be discovered by a long-drawn argument or process. See the case of WAMBELE MTUMWA SHAHAME VS MOHAMED HAMIS (Civil Reference No. 8 of 2016) [2018] TZCA 39 (9 August 2018) (Tanzlii). That being the law, in the present matter, the learned counsel for the Applicant alleged the application granting extension of time to lodge an appeal No. 161 of 2022 was res judicata. On his part, the learned counsel for the Respondent strongly opposed this on account that the claimed Page | 11 illegality must be apparent on the face of record and must be an illegality of the impugned decision. This court agrees with the learned counsel for the respondent that the alleged illegality must be on the impugned decision which is Land Appeal No. 161 of 2022. Surprisingly, the applicant raised an illegality based on the Misc. Application 57 of 2022 which was supposed to be raised in Appeal No. 161 of 2022 and not on the present application. The record shows this point of objection was once raised by the applicant in 161 of 2022 but later, the applicant opted to withdraw it on his own volition without leave to refile. This entail the applicant abandoned his right thus he is barred to raising it again on the ground which were stated in the case of MTENGETI MOHAMED VS BLANDINA MACHA (Civil Application No.344 of 2022) [2023] TZCA 17328 (12 June 2023) where the court held that: "As stated earlier, the decision of the High Court against which an application for revision is ultimately sought, was pronounced on 7th March, has been brought after a considerable delay which has not been accounted for. In view of this, I would but reiterate here what this Court held in the case of William Kasian Nchimbi and three others v. Abas Mfaume Sekapala and Two Others, Civil Reference No. 2 of 2015 that, illegality cannot be used as a shield to hide against inaction on the part of the applicants. And if I may add, the position set by our previous Page | 12 decisions is that, irrespective of the nature of the grounds advanced by the applicant in support of an application for extension of time, he must as well show diligence, and not apathy, negligence or ineptness in the prosecution of the action that he intends to take." (Emphasis is mine). I am aware that while determining the application for extension time the court cannot go further to discuss the said illegality if valid on not as doing so will amount to discussing the merit of intended appeal. However, the illegality raised in this application is not sufficient to warrant the court to exercise its discretion of granting extension of time because it seems it is intended to be used as a shield to hide against the applicant's inaction. For the above given reasons, I find that no sufficient cause has been shown to warrant extension of time as sought by the applicant. The application is accordingly dismissed with costs. It is so ordered. DATED at ARUSHA this 22nd day of November 2024. A.Y. MWENDA JUDGE Page | 13