Venance Nyaringa Kazuri vs Eldard Mwesigwa Sospeter (Civil Application No. 1138 of 2024) [2026] TZCA 335 (23 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1138 OF 2024 VENANCE NYARINGA KAZURI....................................................... APPLICANT VERSUS ELDARD MWESIGWA SOSPETER ...................................... ......RESPONDENT (Application for extension of time to lodge a notice of appeal and letters requesting for certified copies of the proceedings, judgment, decree and records out of time arising from the decision of the High Court of Tanzania at Mbeya) (Moshi, 3.) dated the 5th day of March, 1999 in Civil Appeal No. 26 of 1996 RULING 17t h & 2 Jd March, 2026 KHAMIS. 3.A.: In this second bite application, Venance Nyaringa Kazuri, the applicant, moved the Court for two orders: one, an extension of time within which to file a notice of intention to appeal to the Court of Appeal against the impugned decision of the High Court of Tanzania, Mbeya (Moshi, J) in Civil Appeal No. 26 of 1996; two, an extension of time within which to lodge a letter requesting for certified copies of the records, proceedings, judgment, decree, ruling, drawn orders and other necessary documents necessary for i

the preparation of an appeal to the Court of Appeal arising out of the impugned decision of the High Court. The application was brought by way of notice of motion premised on rules 10 and 45A (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The notice of motion was supported by an affidavit deposed by the applicant on 18th September, 2024. In the said affidavit, the applicant deposed that, he was aggrieved by the impugned decision of the High Court (Moshi, J) dated 5th day of March, 1999 which dismissed his appeal arising out of Civil Case No. 6 of 1995 delivered by the District Court of Mpanda (Nassary, RM) on 11th October, 1996. That, immediately after the delivery of the impugned decision, he lodged a notice of appeal to the Court of Appeal and subsequently filed several appeals which were struck out by the Court on grounds of technicalities. It was further deposed that, following the striking out of the appeals preferred by the applicant, the applicant lodged Civil Application No. 599/06 of 2018 in this Court for extension of time to file a notice of appeal out of time and for an extension of time to serve a notice of appeal to the respondent. The application was allowed and an order for extension of time was accordingly granted on 18th April, 2019.

As leave to appeal was required, the applicant lodged an application for leave to appeal to the Court of Appeal which was granted by Ndunguru, J. on 30th June, 2020. A similar order was given by Lukelelwa, J. (as he then was) on 20th February, 2008 vide DC Civil Appeal No. 26 of 1996. Following an order for leave to appeal, the applicant lodged Civil Appeal No. 90 of 2012 which was struck out on grounds of technicalities. Subsequently, the applicant moved the High Court for an order of extension of time to file a notice of appeal out of time vide Miscellaneous Civil Application No. 38 of 2012 which was accordingly granted by Karua, J. (as he then was). On that basis, the applicant landed on this Court vide Civil Appeal No. 22 of 2015. Unfortunately, Civil Appeal No. 22 of 2015 was equally struck out on 20th August, 2015 on grounds of technicalities. The applicant further deposed that, thereafter, he lodged Miscellaneous Civil Application No. 24 of 2016 for an order of extension of time to file a notice of appeal to the Court of Appeal from the impugned decision of the High Court (Moshi, 3) in DC Civil Appeal No. 26 of 1996. The latter application was dismissed by the High Court (Levira, J) on 19th October, 2018. Between 30th November, 2022 and 7th December, 2022 when the applicant was supplied with copies of the order of this Court, he followed up on the ruling of this Court and upon getting it, he scouted for the right advocate to pursue

the appeal. Upon being instructed, the applicant's counsel, M/S Primo Attorneys, studied the file and prepared necessary papers to institute this application. The applicant further stated that, the delay to file a notice of appeal, leave to appeal and lodging of letters for copies of the proceedings, judgment, decree, ruling and drawn orders was due to the time spent prosecuting related proceedings in the High Court and the Court of Appeal and not out of sheer negligence or disrespect to the court process. Further, the applicant deposed that, the impugned decision of the High Court was tainted with illegalities apparent on the face of the record as it wrongly found the District Land Allocation Committee (the DLAC) had the powers to revoke his right of occupancy over the disputed registered land and re - allocate it to the respondent. The respondent resisted the application through an affidavit in reply deposed by his counsel, Ms. Jalia Hussein Nyamoga, on 18th March 2025. The reply was basically a general denial and subjected the applicant to the strictest proof of his allegations. It should be noted that, the parties dispute originated in the District Court of Mpanda where the applicant sued the respondent in Civil Case No. 6 of 1995 for declaration that, he was the lawful owner of the disputed land,

Plot No. 25, Block "A", located within Mpanda Township. Upon trial, the trial Court (T.A. R. Nassary, RM) was satisfied that, the applicant did not make exhausted improvements on the land in dispute and that, the respondent was legally allocated the same by the relevant authority, the DLAC. On that basis, the respondent was declared the lawful owner of the disputed land. Aggrieved by the decision, the applicant preferred Civil Appeal No. 26 of 1996 in the High Court of Tanzania, Mbeya. Upon hearing the parties, the High Court (Moshi, 1) dismissed the appeal with costs thereby upholding the trial court's decision that, the respondent is the lawful owner of the disputed land. The applicant's efforts to challenge the impugned decision of the High Court was thwarted by the defects in the various applications and appeals that were lodged in the High Court and the Court of Appeal as earlier on stated. At the virtual hearing of this application, both parties were represented. Mr. Hassan Gyunda, learned advocate, acted for the applicant while the respondent enjoyed the services of Ms. Jalia Hussein Nyamoga, also learned advocate. The applicant was also present in person.

Raising the curtains, Mr. Gyunda adopted the affidavit in support of the notice of motion and highlighted the historical background of the dispute tracing it back to the year 1995 when the DLAC revoked the applicant's right of occupancy over the disputed land and re - allocated it to the respondent. He focused on the decisions of the trial court and the High Court which in his view, were decided on the wrong principles of the law, particularly, the Land Ordinance, Cap 113. He argued that, the courts below misdirected themselves on finding that, the DLAC was empowered to revoke the applicants right of occupancy over the disputed land and re - allocate it to the respondent. Relying on paragraphs 24, 25 and 26 of the supporting affidavit, Mr. Gyunda asserted that, the applicant ably demonstrated a valid point of law of sufficient importance, namely, the DLAC as a public body made a decision to revoke the right of occupancy without the requisite statutory powers to do so. He submitted that, the said point of law was an illegality on the face of the record that required the attention of this Court in order to protect the ends of justice. Further, the learned counsel contended that, the applications and the appeals that were filed but unsuccessfully pursued by the applicant in the High Court and the Court of Appeal demonstrated that he did not sit idle on

his rights. He submitted that, having pursued the course of justice for almost three decades, the applicant was entitled to an order for extension of time to file an appeal in order to challenge the impugned decision of the High Court. The learned counsel cited the case of Lyamuya Construction Co. Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 513 (3 October, 2011) for the proposition that, in an application for extension of time the Court should consider whether the applicant has accounted for all the period of delay; the delay is not inordinate; diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; other sufficient reasons such as existence of point of law of sufficient importance including an illegality of the decision sought to be challenged. He argued that, the applicant's case falls squarely within those principles particularly on existence of a point of law of sufficient importance. Further, Mr. Gyunda placed reliance on the case of the Attorney General and the Advocates Committee vs. Fatma Amani Karume, Civil Application No. 220/01 of 2024 [2025] TZCA 356 (15 April 2025) where the Court referred to its earlier decision in the case of the Attorney General v. Tanzania Ports Authority and Another, Civil Application No.

87 of 2016 [2016] TZCA 897 (12 October 2016) where it pronounced itself that, a claim of the illegality of the challenged decision constitutes sufficient cause for the extension of time regardless of whether or not reasonable explanation has been given by the applicant under the rule to account for the delay. Addressing the alleged point of illegality, the learned counsel for the applicant cited the case of Patnam Garments Industries Ltd vs. Tanzania Manufacturers Ltd [1981] TLR 303 at page 303, for the proposition that, reasons must be given for the revocation of a certificate of title and that, the absence thereof is a serious legal flaw. Responding to questions by the Court, the learned counsel submitted that, the applicant had sufficiently met the criteria for the grant of an application for extension of time as enumerated in the cited case of Lyamuya Construction Company Limited (supra) and that, elements of technical delay were vivid in the affidavit of the applicant. Finally, the learned counsel urged the Court to find that, the applicant advanced a good cause for the Court to exercise its discretion on granting an order for extension of time. He prayed that, the application be allowed with costs in the cause. 8

In response to a question by the Court on contents of the other paragraphs of the affidavit in support of the application, Mr. Gyunda asserted that, paragraphs 4 to 23 inclusive sufficiently disclosed that, apart from an illegality raised, the applicant had consistently pursued his right of appeal through the various applications and appeals preferred in the High Court and in this Court but flopped for various reasons ranging from defective pleadings and noncompliance of the procedural requirements. As a reaction to the applicant's submissions, Ms. Nyamoga gallantly submitted that, the application was out of place as the applicant failed to account for the period of delay which span to almost three decades. Having adopted the affidavit in reply, she urged the Court to dismiss the application with costs on the ground that, the alleged point of illegality was misplaced as the DLAC had the requisite powers to allocate the land within its locality and if the allocated land is not developed, it could revoke the right of occupancy and re-allocate it to someone else. The learned counsel for the respondent contended that, the applicant owned the disputed plot of land through a letter of offer which was properly revoked by the DLAC as it was empowered to do so. Revisiting the powers of the DLAC, Ms. Nyamoga asserted that, the committee was empowered to one, make proposals for land allocation within its area; two, review and

determine the applications for land allocation within its area; three, advice the relevant authorities on land related matters within its area; and four, perform such other function(s) related to land which could be performed by the Commissioner for Land. Expounding, the learned counsel contended that, in the circumstances of this matter, the DLAC had acted within its powers and mandate as the applicant failed to develop the disputed land as per the development conditions. She emphasised that, the respondent was lawfully allocated the land in dispute and that, the issue of illegality was baseless. Additionally, the learned counsel for the respondent placed reliance on the case of Mtengeti Mohamed vs. Blandina Macha, Civil Appeal No. 344 of 2022 [2023] TZCA 17328 (12 June 2023) at page 9 for the proposition that, an illegality cannot be used as a shield to hide against an inaction on the part of the applicant. She argued that, the applicant failed to act within the statutory time and that, the period of delay was not accounted for by the applicant. She laid emphasis on the period between 5th March 1999 to 18th September 2024, when this application was filed. Further, Ms. Nyamoga cited the decisions of the Court in the cases of Lyamuya Construction Co. Ltd (supra) at pages 6-7 and Abdulrahman Mohamed Ally vs Tata Africa Holdings T. Limited (Civil Application No. 10

166 of 2021) [2023] TZCA 60 (24 February 2023), at pages 3- 4 for the proposition that, illegality alone was not sufficient to warrant an extension of time if the applicant fails to account for the period of delay. Ms. Nyamonga asserted that, the impugned decision of the High Court was delivered on 5th March 1999 and therefore, in terms of rule 83 of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant was required to file a notice of appeal within 30 days from the date of the decision. She invited the Court to consider that, the delay was inordinate as the applicant failed to explain his whereabouts prior to the filing of this application and thus, he failed to account for the period of delay which spanned to almost 25 years. Regarding the technical delay, Ms. Nyamoga placed reliance on the decision of this Court in the case of Fortunatus Masha vs. William Shija & Another [1997] TLR 154 where a technical delay was distinguished from an actual delay. She contended that, the applications and appeals filed by the applicant in the High Court and in this Court prior to the filing of this application were not enough to justify an extension of time as the applicant had acted negligently. To cap it off, the learned counsel for the respondent urged the Court to dismiss the application with costs on the ground that, no reasonable li

explanation was given for the applicant's delay so as to warrant the Court to make an order for extension of time as sought by the applicant. In a brief rejoinder, Mr. Gyunda reiterated his earlier submissions and insisted that, the DLAC had no power to revoke the right of occupancy, regardless of whether the ownership was in the form of a letter of offer or a certificate of title. He challenged the respondent's counsel to cite any provision in the Land Ordinance, Cap. 113 which empowered the DLAC to revoke the applicant's right of occupancy or a letter of offer. The learned counsel also referred the Court to pages 6 - 7 of the impugned judgment of the High Court, where Section 10 of the Land Ordinance, Cap 113 was cited, but faulted the learned Judge for the omission to state the specific provision of the said statute which allegedly empowered the DLAC to revoke the right of occupancy. Further, the learned counsel sought to distinguish the case of Mtengeti Mohamed (supra) on the ground that, the applicant therein had spent over nine years after the judgment was delivered without taking any step towards challenging the impugned decision in court. In contrast, he argued, the applicant has actively engaged the courts to admit his appeal since 1999 up to 2024. He invited the Court to find that, the applicant's act of filing the string of applications and abortive appeals in the High Court and 12

the Court of Appeal was a manifestation of his commitment to challenge the impugned decision. He insisted that, there was no single day that the applicant stayed idle without taking steps towards the filing of an appeal. He attributed such delay to technical bottlenecks which were beyond the powers of the applicant, a lay person. Regarding proceedings that were previously pursued by the applicant in the High Court and in this Court, Mr. Gyunda named them to include the High Court's Miscellaneous Civil Application No. 24 of 2016; the High Court's DC Civil Appeal No. 26 of 1996; the Court of Appeal Civil Application No. 599/06 of 2018; the Court of Appeal Civil Appeal No. 90 of 2012; the Court of Appeal Civil Appeal No. 378 of 2020 and the High Court Misc. Civil Application No. 50 of 2022. I have carefully considered the affidavit in support of the notice of motion, the affidavit in reply and the learned counsel rival arguments. Rule 45A (1) of the Rules empowers this Court to determine an application for extension of time to lodge a notice of appeal, apply for leave to appeal or apply for a certificate on a point of law if the same was previously applied in the High Court and refused. The said application is to be filed within fourteen days from the date of refusal by the High Court. 13

The record shows the High Court decision in Miscellaneous Civil Application No. 50 of 2022 which declined to extend the time for the applicant to lodge a notice of appeal against the impugned decision of the High Court was delivered by Nongwa, J. on 4th September, 2024. The present application was filed on 18th September, 2024 well within time. Rule 10 of the Rules provides that, this Court is empowered to extend the time limited by the Rules or by any decision of the High Court or tribunal, for the doing of any act authorized or required by the Rules, whether before or after the expiration of the time if the applicant shows a good cause for the delay. The issue that commands my determination is whether the applicant has met the conditions for the grant of an application for extension of time to file a notice of appeal. Rule 83 (1) and (2) of the Rules provides that, any person who desires to appeal to the Court of Appeal against a decision of the High Court or tribunal, should lodge a notice of appeal within thirty days of the date of the decision against which it is desired to appeal. It is not disputed that, the applicant was aggrieved by the decision of the High Court in Civil Appeal No. 26 of 1996 delivered by Moshi, J. (as he then was) on 5th March, 1999. It is clear from the wordings of rule 10 of the Rules that, before the Court considers extension of time, the applicant must 14

satisfy it that the delay was out of a good and sufficient cause. This principle was enunciated in several decisions of this Court including the case of Ally Nuru v. Kudura Haruna, Civil Application No. 49 of 2025 [2025] TZCA 994 (22 September 2025) where it was scored that, all relevant factors must be taken into account in deciding to exercise the discretion to extend time. The said factors include the length of delay, the reason for the delay, the degree of the prejudice to the respondent if time is extended and such other relevant factor in the circumstances of the case. In moving the Court for an order of extension of time the applicant relied on the ground of illegality. In the case of Principal Secretary, Ministry of Defence and National Services v. Devram P. Valambia (1992) T.L.R 185, This Court pronounced itself that, when a point at issue is one alleging illegality of the decision being challenged, the Court has a duty even if it means extending the time for purpose of ascertaining the point and if the alleged illegality be established to take appropriate measures to put the matter and the record right. In the case of Abdul Ally Faraj v. Asha Selemani Mhina, Civil Application No. 1444 of 2024 [2025] TZCA 982 (19 September 2025) we observed that, when determining an issue of illegality, the Court should consider whether the alleged illegalities are material irregularities such as a 15

denial of the right to be heard, the want of jurisdiction or time limitation. Another issue to be considered is whether the point of illegality is of sufficient importance. The learned counsel for the applicant contended that, the parties' bone of contention revolves around a revocation of the right of occupancy in respect of the disputed land. He argued that, the said land was earlier on allocated to the applicant vide a long term letter of offer that was never revoked by a competent authority. According to him, the DLAC was not empowered to revoke the right of occupancy and re - allocate the same land to the respondent. The learned counsel for the respondent took an opposite avenue insisting that, in terms of the provisions of the Land Ordinance, Cap 113 the DLAC was fully mandated to revoke the right of occupancy over the disputed land and re - allocate it to the respondent. Upon perusal of the records of the lower courts, I noticed that, this issue was fiercely contested in the trial court and the first appellate court. It was also evident from the proceedings of the trial court that, at the time of revocation of the right of occupancy by the DLAC, the applicant had obtained a certificate of the right of occupancy over the disputed land. This suggests that the revocation was done on a certificate of title and not on a letter of offer as alleged by the learned counsel for the respondent. In any case, both 16

documents, a letter of offer and a certificate of title, evidences ownership of a right of occupancy of a surveyed parcel of land. In the circumstances, I am of the view that, the point of law raised by the applicant, whether the DLAC was legally empowered to revoke the applicant's right of occupancy is a material and relevant issue to be determined by this Court as it questions the authority of a public body to act in accordance to law. Another justification for an extension of time was the technical delay attributed to a string of proceedings filed and pursued by the applicant for over 25 years. In the cited case of Fortunatus Masha v. William Shija (supra), this Court drew a distinction between cases involving real or actual delays and the cases which involves technical delay. Distinguishing the two forms'of delay, the Court observed that, where the original appeal was lodged in time but found to be incompetent for one reason or another and a fresh appeal had to be instituted, it constitutes a technical delay. In other words, a technical delay refers to procedural bottlenecks which despite the diligent efforts, prevents a party from proceeding with the case, application or appeal for reasons outside his control. In the case of Bank M (T) Limited v. Enock Mwakyusa, Civil Application No. 520 od 2017 [2018] TZCA 291 [25 October 2018], the Court pointed out that, the explicable period of delay spent by the applicant in 17

prosecuting the case, an appeal or an application that was struck out or dismissed on technical grounds is excusable as a technical delay. In this case, it is clear that, between 1999 and 2024 the applicant actively lodged numerous applications in the High Court and two appeals in this Court geared to challenge the impugned decision of the High Court. Most of the said applications and the appeals were struck out on technical grounds such as unsatisfactory features besetting the notice of appeal and non-compliance of the provisions of law and or the Rules. In view of that background, I am satisfied that, the applicant's prayers for extension of time to lodge a notice of appeal and to lodge a letter applying for certified copies of the proceedings, judgment, decree, ruling, drawn order and any other relevant document for the purposes of filing an appeal are justified. When addressing this same issue in Civil Application No. 599/06 of 2018 (unreported) which involved the parties to this application, this Court considered the ups and downs which the applicant faced in a bid to challenge the impugned decision of the High Court and concluded that, the period of delay which the applicant spent in litigating in this Court and in the High Court was a technical delay. On that note, I wish to associate myself with the reasons given by the Court when concluding the issue, thus: 18

"The applicant in the present application ; having been duly penalized by striking out two appeals in this Court and a number o f applications in the High Court the same cannot be used yet again to determine the timeousness o f applying for filing the fresh notice o f appeal in a bid to file a fresh appeal. That was a technical delay on the part o f the applicant which constitutes good cause under rule 10 o f the Rules." In the circumstances, I am satisfied that, the applicant has shown a good cause for an extension of time in respect of the two prayers sought in the notice of motion, namely, one, the filing of a notice of appeal to the Court of Appeal and two, to lodge a letter requesting for certified copies of the proceedings, judgment, decree, ruling, drawn order and any other relevant documents necessary for the preparation of the record of appeal to the Court of Appeal in respect of the impugned decision of the High Court in Civil Appeal No. 26 of 1996. For those reasons, this application is allowed as prayed. In the upshot, a notice of appeal has to be filed within thirty (30) days from the date of this ruling. Equally, a letter requesting for certified copies of the proceedings, judgment, decree, ruling, drawn order and any other document necessary for purposes of appeal should be accordingly lodged 19

within the same time duration. Costs of this application shall abide the outcome of the intended appeal. DATED at DODOMA this 19th day of March, 2026. A. S. KHAMIS JUSTICE OF APPEAL Ruling delivered this 23rdday of March, 2026 via virtual Court, in the presence of Ms. Jalia Hussein, counsel for the Respondent but also holding brief for Mr. Hassan Gyunda, learned counsel for the Applicant and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 20