David Martin Mpahi & Others vs Jambo Freight Limited (Civil Application No. 420/17 of 2024) [2026] TZCA 437 (27 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPPLICATION NO. 420/17 OF 2023 DAVID MARTIN MPAHI & 23 O TH ERS...........................................APPLICANT VERSUS JAMBO FREIGHT LIMITED ................................. ........................RESPONDENT (Application for extension of time to file an appeal out of time against the decision of the High Court of Tanzania, Land Division, at Dar es Salaam) (Muqeta, J.1 ) dated the 2n d day of April, 2020 in Land Case No. 352 of 2016 RULING 19th May, 2025 & 27th April, 2026 KHAMIS, J.A.: On 2n d day of April, 2020 the High Court of Tanzania, Land Division, at Dar es Salaam, determined Land Case No. 352 of 2016 between the parties herein with the result that Jambo Freight Limited, the respondent, was declared a lawful owner of the disputed parcel of land, Plot No. 120, Port Access Road, Dar es Salaam. Aggrieved by the whole judgment and decree of the High Court, David Martin Mpahi & 25 others, the applicants, issued a notice of appeal and subsequently filed Civil Appeal No. 440 of 2020 geared to challenge the impugned decision.

When the said appeal was scheduled for hearing on 5th day of May, 2023, the Court acted suo motu to invite the parties to address it on competency of the appeal. Mr. Twaha Taslima, learned advocate who represented the applicants, readily conceded that, the certificate of delay was erroneously issued and it rendered the appeal time barred. On those premises, the appeal was struck out with no order for costs. Determined to start afresh, the applicants lodged this application vide a notice of motion predicated on section 4 (3) of the Appellate Jurisdiction Act, Cap 141, R.E 2019 (the AJA) and rules 10, 4 (1), (2) (a), (b) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for an extension of time within which to file an appeal in order to challenge the impugned decision of the High Court. The notice of motion was supported by an affidavit sworn by Jonas Stephen Kilimba, learned advocate, who was duly instructed to act bn that behalf. Jonas Stephen Kilimba deposed that, after Civil Appeal No. 440 of 2020 was struck out by the Court, he unsuccessfully followed up at the High Court for copies of the missing documents, namely, a duly signed memorandum of appeal and corrected certificate of delay for the purpose of initiating a fresh appeal. A letter was also written to the trial court by M/s Taslima Law

Chambers, Advocates, on behalf of the applicants as a reminder for the prompt supply of the missing documents. It was further deposed that, from 10th to 14th May, 2023 partners of M/s Taslima Law Chambers, Advocates, were in Arusha to attend the Annual General Meeting (the AGM) of the Tanganyika Law Society (TLS) hence the delay to timely lodge the appeal. The respondent filed an affidavit in reply sworn by Lusajo Willy, learned advocate, who generally deposed that, the applicants acted negligently in handling Civil Appeal No. 440 of 2020 leading to its being struck out. He averred that, the allegedly missing documents had no relevance to the present application and ought to be disregarded. In opposition to the application, the respondent also filed a notice of preliminary objection seeking an order to strike out the application on the ground that, it was defective and unmaintainable in law for contravening rules 45A and 83 of the Rules. At the hearing of this application, both sides were represented. Whereas 'I Mr. Jonas Kilimba, learned advocate, appeared for the applicants, Mr. Lusajo Willy, also learned advocate, acted for the respondent. In support of the preliminary objection, Mr. Willy submitted that, this application is incompetent for contravening rules 45A and 83 of the Rules.

Highlighting the chronology of events leeding to this application, he contended that, when Civil Appeal No, 440 of 2020 was struck out, the notice of appeal was equally struck out. Following the striking out of the appeal, every document or legal step associated with that appeal such as a notice of appeal, certificate of delay and a memorandum of appeal ceased to exist and the applicants were to start the appeal process afresh. He insisted that, if the applicants were still interested to challenge the impugned decision of the High Court, they were bound to issue a fresh notice of appeal and abide by the requirements of rules 45A and 83 of the Rules. The learned counsel contended that, the applicants were misguided in filing the present application without complying with the requirements of the cited rules. He argued that, such an application cannot be entertained in the I absence of a valid notice of appeal. To fortify his argument, he sought reliance on the decision of the Court in the case of Dr. William Shija v. Dr. Fortunatus Lwanyantika Masha, Civil Reference No. 12 of 1997 [1997] TZCA 123 (25 August 1997) for the proposition that, when an appeal is struck out, the notice of appeal is also struck out. The learned counsel also cited the case of Arusha International Conference Centre v. Damas Augustine Ndemasi Kavishe, Civil

Appeal No. 34 of 1988 (unreported) where the Court expressed its stance that: "The application for extension o f time to file the memorandum and record o f appeal presupposes that, there is already a notice o f appeal in existence. But the notice of appeal which brought into being the appeal which has just been struck out, disappeared with the striking out o f that appeal." Mr. Willy maintained that, an order for extension of time to lodge a notice of appeal cannot be made impliedly to this Court as it should be formally filed in the High Court. On that respect, he relied on the decision of the Court in the case of Dr. William Shija (supra) that: "On the other hand, even if Mr. Makani's submission that there was an implied application for extension o f time in which to file notice o f appeal is accepted, we think such an implied application, if any, would still be incompetent The reason is that in terms o f the provisions o f section 11 (1) o f the Appellate Jurisdiction Act 1979 and rule 8 o f the Court's Rules, this Court and the High Court have concurrent jurisdiction to grant extension o f time to give notice o f appeal. However, under rule 44, the application for extension o f time shall in the first instance be made to the High Court. In the instant case, no such

application had been made to the High Court. Therefore, the matter before the learned single judge was incompetent for non-compliance with rule 44. That is, the Court had no jurisdiction to entertain the application which had not satisfied the conditions set out under this rule..." When invited to respond, Mr. Kilimba strongly resisted the preliminary objection raised and contended that, rules 45A and 83 of the Rules were not relevant to the instant application. He expounded that, rule 45A refers to applications filed in the High Court and not applications filed in this Court like the instant one. He placed reliance on the decision of this Court in the case of Fortunatus Masha v. William Shija & Another [1997] T.L.R 154, thus: "A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement o f the ruling o f the Court striking out the first appeal. In these circumstances, an extension o f time ought to be granted."

The learned counsel for the applicant referred the Court to the order striking out Civil Appeal No. 440 of 2020 and contended that, the applicants acted timeously and procedurally in lodging this application. To buttress his argument, he cited the case of Tabuhela Chale and 6 Others v. Mufindi Paper Mills Ltd & Another, Civil Appeal No. 259 of 2021 [2025] TZCA 262 (21 March 2025) for the proposition that, a remedy after the appeal has been struck out is for an intended appellant to apply for extension of time within which to lodge a memorandum of appeal and record of appeal instead of requesting for a certificate of delay. On those authorities, the learned counsel for the applicants invited the Court to dismiss the preliminary objection raised and proceed to determine the application on merits. In a brief rejoinder, Mr. Willy distinguished the authorities cited by the applicant and maintained that, they were not relevant to the facts of this application. He expounded that, contrary to the learned counsel assertion, i, the legal principles stated in the case of Fortunatus Masha v. William Shija (supra) could only be applied where the application for extension of time was made in line with the requirements of the Rules. As to the cited case of Tabuhela Chale & Others (supra), Mr. Willy submitted that, the legal position stated therein related to a second bite

application as opposed to the present application which was lodged before exhausting the High Court procedure. He maintained that, this application could only be filed if the High Court had refused to grant the prayer for extension of time to file a notice of appeal and an appeal out of time. In such a case, he submitted, the intended appellant would be required to timeously file a second bite application in this Court. r; The issue that presents itself for determination is whether this Court is vested with jurisdiction to entertain this application. As earlier on stated, the notice of motion was premised on section 4 (3) of the AJA, rules 4 (1) (2) (a), (b), (c) and 10 of the Rules. Section 4 (3) of the AJA refers to the powers of this Court to call for and examine the record of any proceedings before the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision made and as to the regularity of any proceedings of the High Court. In view of the facts of this application, this provision is irrelevant and was wrongly cited. Rule 4 of the Rules is a general provision dealing with the practice and procedure of the Court. Rule 10 of the Rules empowers this Court to extend the time limited by the Rules or by any decision of the High Court or tribunal i • for the doing of any act authorized or required by the Rules. 8

The respondent argued that the application Is incompetent for failure to comply with the mandatory requirements of rules 45A and 83 of the Rules. The relevant part of rule 45A of the Rules, reads, as follows: "45A (1) Where an application for extension o f time to: (a) iodge a notice o f appeal; (b) appiy for leave to appeal; or (c) apply for a certificate on a point o f law, is refused by the High Court, the applicant may within fourteen days o f such decision apply to the Court for extension o f time . " Likewise, the relevant parts of rule 83 of the Rules, provides that: 5 "83 (1) Any person who desires to appeal to the Court shall lodge a written notice in duplicate with the Registrar o f the High Court. (2) Every notice shall, subject to the provisions of rule 91 and 93, be so lodged within thirty days o f the date o f the decision against which it is desired to appeal . " The powers of this Court to extend time for lodging a notice of appeal, to apply for leave to appeal and for a certificate on a point of law have been well explained in several decisions of the Court. In the case of Dr. William Shija v. Dr. Fortunatus Lwanyantika Masha (supra) this Court pronounced itself that: 9

in terms o f the provisions o f section 11 (1) of the Appellate Jurisdiction Act 1979 and rule 8 o f the Court's Rules, this Court and the High Court have concurrentjurisdiction to grant extension o f time to give notice o f appeal. However, under rule 44 , the application for extension o f time shall in the first instance be made to the High Court. In the instant case, no such application had been made to the High Court. Therefore, the matter before the learned single judge was incompetent for non-compliance with rule 44. That is, the Court had no jurisdiction to entertain the application which had not satisfied the conditions set out under this rule..." Similarly, in Mkunazini Shipping Agencies & Another v. Said Khamis Hamed, Civil Application No. 5 of 2012 [2013] TZCA 376 (11 December 2013) which originated from a decision of the Regional Court of Zanzibar at Vuga in the exercise of its extended jurisdiction, the Court addressed a similar issue and restated the law, thus: "Section 11 (1) o f the Appellate Jurisdiction Act, Cap. 141 R.E 2002 (the Act) to be read together with rule 47 o f the rules is very dear. It says where an appeal lies from a subordinate Court exercising extended powers, that subordinate Court and not the High Court as contended by Mr. Abdallah has powers to extend time for the giving, not only the notice o f

appeal, but also granting an application for leave to appeal as well as to certify whether it is a fit case to come to this Court on appeal. In the instant case the Regional Court with extended jurisdiction, which is deemed to be the High Court for purposes o f rule 47 o f the Rules, refused to extend time to enable the applicants file notice of appeal out o f time. They (applicants) have the right to come straight to this Court and apply for the same. The point o f objection raised lacked merits..." In the subsequent case of Benedict M. Kezirahabi v. Loveness Mary D. Kezirahabi, Civil Application No. 572 of 2019 [2022] TZCA 634 (13 October 2022) this Court pointed out that: "...It is also dear that, where jurisdiction to entertain an application is conferred on both courts, the application must be made first to the High Court. It is upon determination o f that application at the High Court, the applicant, if denied leave or an extension o f time to apply for leave, can file a fresh application in this Court as a second bite. It is settled that, in a second bite application, the applicant is required to ffie a fresh application which has nothing to do with the one that was initially before the High Court and refused ..." li

The legal stance expressed above was re-affirmed by the Court in the case of Pius Kuhangaika and 2 Others v. Cowi Consult (T) Ltd, Civil Application No. 191 of 2013 [2014] TZCA 2394 (4 August 2014), thus: "...Where the applicant first fiies the application as was rightly done by the applicants herein, before the High Court and he/she is not successfulthe said applicant has the right to come before this Court for a second bite. He/she does not come by way o f appeal or revision. Therefore, the procedure followed in this application is proper. I do agree with the applicant's counsel that such an application is lodged in this Court after it had been made before the High Court and refused. Refusal by the High Court is the only trigger for the application to this Court ..." I subscribe to the views taken by the Court in the cases reproduced above. From the careful reading of rules 45A and 83 of the Rules, it is clear that, any person who is aggrieved by a decision of the High Court or the tribunal, has to file a notice of appeal within thirty (30) days from the date of the impugned decision. If such notice of appeal is not timely filed, the intended appellant is entitled to apply for extension of time within which to file a notice of appeal. 12

In terms of rule 45A, this Court and the High Court have concurrent jurisdiction to extend the time for lodging a notice of appeal, for leave to appeal and for a certificate on a point of law. It is also clear to me that, while this Court is clothed with jurisdiction to extend the time under rule 45A for a litigant who is desirous of filing a notice of appeal to the Court of Appeal out of time, such authority is passive and cannot be exercised unless the High Court refuses to allow the said application for extension of time on its merits. In that case, the intended appellant will be entitled to lodge a fresh application in this Court as a second bite. The second bite application is not an appeal from a decision of the High Court which refused to grant an application for extension of time. It is a fresh application in which the applicant is at liberty to front new ground(s) for extension of time which can be different from those raised in the High Court. The Court is bound to consider all such grounds raised in the second bite application regardless of their determination by the High Court. I need not point out that, a party intending to appeal cannot generally lodge a valid appeal to this Court without first lodging a notice of appeal in terms of rule 83 of the Rules. Under rule 90 (1) of the Rules, an appeal i . should be filed within sixty days after the notice of appeal is lodged. In the absence of a notice of appeal, this Court therefore lacks jurisdiction to

entertain an appeal or related applications, such as an application for stay of execution. It may, however, entertain applications for revision, review or any ancillary application arising therefrom. Therefore, the importance of a notice of appeal cannot be overstated, as it signifies a party's intention to appeal, both to the Court and to the respondent. It is equally true that, as the law stands, when Civil Appeal No. 440 of 2020 was struck out, the notice of appeal was also impliedly struck out by the Court. It ceased to exist. Accordingly, the applicants cannot file any valid appeal without having in place a freshly issued and valid notice of appeal. In terms of rule 83 (1) the notice of appeal is to be filed with the Registrar of the High Court. In my view, this procedure is neither cosmetic nor optional. It cannot be overlooked or circumvented by filing an application for extension of time in the Court of Appeal before the same is filed and determined by the High Court on its merits and refused. It makes sense that, after the applicants' Civil Appeal No. 440 of 2020 was struck out, they ought to have moved the High Court for extension of time within which to lodge a fresh notice of Appeal in terms of rule 45A of the Rules. Without a decision of the High Court on its merits refusing to grant the applicants an order for extension of time within which to file a fresh notice 14

of appeal, I do not see how this Court can exercise its jurisdiction under rule 45A of the Rules and entertain this application for extension of time to file an appeal out of time. In the circumstances, I decline the applicants' misguided invitation to assume the jurisdiction otherwise vested in the High Court and instead, I find the notice of motion is fit for striking out. This is to say, the preliminary point of law raised by the respondent is sustained and the application is e • hereby struck out with no order for costs. It is so ordered. DATED at DODOMA this 27th day of April, 2026. A. S. KHAMIS JUSTICE OF APPEAL The Ruling delivered virtually this 27th day of April, 2026 in the presence of Mr. Twaha Taslima, learned counsel for the Applicants, in the absence for the Respondent and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original. 15