Emmanuel Paschal Otedo vs Tanzania Cigarette Public Company (Civil Application No. 583/01 of 2024) [2026] TZCA 580 (15 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM; LEVIRA, J.A.. MASHAKA. 3.A. AND NGWEMBE. J.A.^ CIVIL APPLICATION NO. 583/01 OF 2024 EMMANUEL PASCHAL O TED O .................................................... APPLICANT VERSUS TANZANIA CIGARETTE PUBLIC COMPANY (Form erly known as TANZANIA CIGARETTE COMPANY LIMITED)............................................................ RESPONDENT [Application for substitution of the deceased Pascal Otedo by the administrator of the estate Emmanuel Pascal Otedo] (Mipawa, J.1 dated 28th day of October, 2016. in Civil Revision No.364 of 2015. RULING OF THE COURT 29 April & 15th May, 2026 NGWEMBE. 3.A.: This ruling emanates from the notice of motion made under rule 4 (2) (a) and (b) of the Tanzania Court of Appeal Rules, lodged in Court on 2n d August, 2024. The applicant being an administrator of the deceased estate (Paschal Otedo), seeks an extension of time to substitute the l

deceased's name in Civil Appeal No. 275 of 2021 which is pending in Court. The brief background of the matter is as follows: The deceased Pascal Otedo had a labour dispute with the respondent which was arbitrated before the Commission for Mediation and Arbitration (the CMA) in labour dispute CMA/DSM/TEM/2016/2013 and later was determined by the High Court of Tanzania Labour Division (the Labour Court) in Civil Revision No. 364 of 2015. The respondent herein was dissatisfied with the decision of the Labour Court, hence appealed to the Court in Civil Appeal No. 275 of 2021. Unfortunately, before the appeal could be heard and determined, the respondent to that appeal (Pascal Otedo) passed away. Thereafter, in this present application, the applicant was appointed an administrator of the deceased estate. After a delay for two years to join the pending appeal, he filed the present application for extension of time to be made a party in place of the deceased in the pending appeal. The notice of motion is supported by an affidavit of the applicant which states that, the deceased passed away on 14/08/2021. He averred that the deceased was already sick when the appeal was lodged 2

in Court on 26/07/2021 and later died. Consequently, on 08/02/2022 the applicant was appointed as an administrator of the deceased's estate. He further averred that; he was not aware of the existence of the said Civil Appeal No. 275 of 2021 before the Court until when he was informed on the existence of that appeal by the learned advocate Amin Mohamed Mshana, that he was required to appear in Court on 09/07/2024. The applicant further states that, he appeared before the Court on 09/07/2024 and notified the Court on the demise of the respondent but the 12 months period had already lapsed. He admits that, he failed to apply for substitution of the deceased's name in the pending appeal within time because he was not aware of the existence of the pending appeal and that the appellant will not suffer any prejudice if the application is granted, he concluded. In reply, the respondent resisted the application by filing an affidavit in reply. Mr. Goodluck Kazaura, identified as a legal affairs manager of the respondent, disputed the application mainly that the applicant was aware on the existence of the appeal. He insisted that the applicant informed the Court on the demise of the deceased on 3

7/6/2022 when they appeared in Court for the hearing of Civil Application No. 85/01/2020 which application was lodged by the deceased seeking the Court's indulgence to strike out the respondent's notice of appeal. Therefore, the applicant and his advocate exhibited full knowledge of the existence of the pending appeal before the Court. Moreover, at paragraph 8 of the respondent's affidavit disclosed that the deceased was represented in courts below by Mr. Amin Mshana and Mr. Mathew Kabunga, both learned advocates. On 7/6/2022, Mr. Kabunga was specifically ordered by the Court to apply for joining the legal representative in the pending appeal. He averred further that; the pending appeal was adjourned twice due to the inaction of the applicant which prejudiced the respondent. Having briefly summarized the contents of the parties' affidavits, on the hearing date, Mr. Amin Mshana, learned advocate entered appearance for the applicant, while Ms. Blandina Harrieth Kihampa, also learned advocate appeared for the respondent. When invited to address the Court, Mr. Mshana first adopted the affidavit in support of the application to form part of his oral account and proceeded to narrate the sequence of events that led to this application. He reiterated that the 4

applicant's appointment as administrator was made on 28/02/2022 when the 12 months period to join the appeal had already lapsed contrary to rule 105 (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules). He argued further that, the application is peculiar because the applicant was not aware of the existence of the pending appeal. When he was served with summons, he had to trace the family members of the deceased. He pointed out that there is a lacunae on the remedy for a person who has failed to join the case on the circumstance like this one. According to him there was no delay since the summons was served to him on 09/07/2024 and this application was filed on 02/08/2024. Contesting the application, Ms. Kihampa adopted the affidavit in reply to form part of her oral submission. She argued that the applicant has failed to adduce sufficient reason for extension of time, since more than two years had lapsed from the date of his appointment as an administrator without any effort to join the appeal. It was her further submission that when Civil Application No. 85/01 of 2020 was called on for hearing on 7/6/2022, Mr. Kabunga, informed the Court that the family was undertaking the process to appoint an administrator who

would eventually be joined to the proceedings of the appeal. Therefore, the applicant and the whole family members were aware of the pending appeal, but failed to take necessary steps. Hence, she implored the Court to dismiss the application entirely. In rejoinder, Mr. Mshana argued briefly that the applicant cannot account for the delayed period from the death of the deceased since he was not a party and he had never appeared before the Court. Hence, he reiterated his prayer that the application be granted. On our part, we find the decisive question for our determination in this application, is whether the application is meritorious. Having considered the submission by the learned counsel and upon critical review of the record of the application, we have grasped that the applicant is well aware on the requirements provided for under rule 105 of the Rules. Based on the circumstances outlined by Mr. Mshana, despite the lapse of the time provided for in the above rule, the applicant sought the Court's order to enlarge time to substitute the deceased's name with the administrator in the pending appeal. However, upon critical examination of the record of this application and solemnly consideration of the parties' arguments, obviously the 6

arguments are in serious conflict with the record, thus justice owes us a duty to straighten them before we deliberate on merit. In the applicant's affidavit at paragraph 2 as well as its annexure "EMO-l," it is evident that the deceased passed away on 14/08/2021 and the applicant was appointed an administrator of the deceased estate on 28/02/2022. Arithmetically, that was only about six months from the death of the deceased to the date of appointment of the applicant. In terms of rule 105 of the Rules, it is a statutory requirement for a legal representative to apply for leave of the Court to join the pending appeal within twelve (12) months. Therefore, the applicant had six months more to apply and join the appeal. We therefore, find that the assertion of Mr. Mshana that when the applicant was appointed, the time for joining the appeal had already expired is defeated and has no leg to stand. We pay homage to our decisions without number that those rules were made to be strictly complied with. See, The Board of Trustees of the National Social Security Fund v. Kilimanjaro Bazaar Limited [2005] T.L.R. 160 and Barclays Bank (T) Limited v. Phylisian Hussein Mcheni, (Civil Application No. 176 of 2015) [2016] 7

TZCA 726 (21 January 2016), in both cases, the Court held that there must be strict compliance with the Court Rules. Another important area of concern is the argument of the learned counsel for the applicant that the applicant did not account for the delay because he was not aware of the existence of the pending appeal, when he was appointed an administrator. On the contrary the respondent's counsel contented that, through Civil Application No. 85/01 of 2020, which came for hearing on 7/6/2022, the same learned counsel for the applicant informed the Court on the demise of the applicant (Pascal Otedo) and steps were underway to appoint an administrator. Consequently, the learned counsel for the applicant successfully sought leave of the Court to withdraw the application. The Court acceded to the prayer and marked the application withdrawn with directives to the administrator to apply for substitution of the deceased's name. Secondly, Mr. Mshana proceeded to argue that the applicant is not responsible to account for the same as he was never a party to the matter and that he was not aware of the existence of the matter and when he became aware, the time for applying to join the proceedings had already expired. On the contrary, Ms. Kihampa insisted that since 8

the applicant was aware from 7/6/2022, therefore, failure to account for each day of delay is fatal. Also, she argued that Mr. Kabunga who was appearing together with the learned counsel Mr. Mshana had specific instructions from the Court to institute an application in Court to replace the name of the deceased with that of the administrator. Hence, she implored the Court to dismiss the application entirely. However, the record speaks itself in this point because it is evident that the learned advocate was aware of the death of the deceased very early. It is averred by the respondent that at the hearing of the Civil Application No. 85/01/2020 on 7/6/2022, they informed the Court and the Court instructed them to make such application for joining the legal representative. In such circumstances, the applicant cannot plead ignorance or unaware of the pending appeal before the Court. Regarding the applicant's duty to account for the delay, we hold that the applicant is not covered by any exception and the learned counsel Mr. Mshana has not pointed any. The assertion that the applicant was not a party to the appeal is defeated because immediately after his appointment as an administrator; first, he assumed all the rights and duties accrued in the estate of the deceased; second, he was 9

presumed to act diligently and promptly for the benefit of the estate of the deceased. As alluded to above, the applicant had six months before lapse of one year to apply be made party to the pending appeal but he abdicated that noble duty; third, the assertion that he was not aware as reflected in paragraphs 6 and 7 of the applicant's affidavit as was the basis of oral account of Mr. Mshana that, he had to trace the family members after being served with the Court summons in July, 2024 is defeated by the available record of the application. Considering what has been deponed in the affidavit in reply and the submission by both learned counsel, we find there is only one inevitable inference that the applicant was aware of the existing appeal pending in the Court since 7/6/2022. Rule 105 of the Rules was made to be complied with like any other rules of the Court. For clarity the rule is reproduced hereunder: Rule 105 (1) "An appeal shall not abate on the death o f the appellant or the respondent but the Court shall, on the application of any interested person, cause the legal representative o f the deceased to be made a party in place o f the deceased. 10

(2) Where an application under subrule (1) is not made within twelve (12) months, the appeal shall, if the deceased person is the appellant, abate and if the deceased person is the respondent, proceed in the absence o f the respondent (3) Any person claiming to be the legal representative o f a deceased party or any other interested person, may apply to revive the appeal; and, if it is proved that he was prevented by good cause from continuing the appeal, the Court shall revive the appeal upon such terms as to costs or otherwise as it deems f i t " (Emphasis added). The excerpt above indicates that the Court in a right circumstance and in a fit application can revive the appeal of a party if it is proved that the legal representative was prevented by good cause from continuing with the appeal of the deceased. The question in this application remains, whether the applicant had good cause to delay joining the appeal as required by law. The answer is in the negative. The delay of almost two years without any reasonable cause is inordinate li

and the applicant had no justifiable cause which prevented him from acting promptly. There being no other exceptional factor, we find this application is not merited and we accordingly dismiss it entirely. Since the matter originates from a labour matter, we make no order as to costs. DATED at DAR ES SALAAM this 13th day of May, 2026. M. C. LEVIRA JUSTICE OF APPEAL L. L MASHAKA JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL Ruling delivered this 15th day of May, 2026 in the presence Mr. Amin Mohamed Mshana, learned counsel for the Applicant, Ms. Blandina Harrieth Kihampa, learned counsel for the Respondent and Ms. Janekissa Bukuku, Court clerk, is hereby certified as a true copy of the