Emmanuel Gitigan Cherabaster vs Said Nassor Said (Civil Application No. 1486 of 2025) [2026] TZCA 324 (19 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1486 OF 2025 EMMANUEL GITIGAN CHERABASTER ..................................... ............ APPLICANT VERSUS SAID NASSOR SAID .............................. ......................................... RESPONDENT (Application for extension of time to file Revision against the decision of the High Court of Tanzania, Land Division at Dar es Salaam) (Msafiri. J.) dated the 18th day of October, 2022 in Land Case No. 190 of 2021 RULING 27thFebruary & 19th March, 2026 KITUSI. J.A.: The applicant Emmanuel Gitigan Cherabaster, was the plaintiff in Land Case No. 190 of 2021 whose theme was to challenge the validity of an auction that had resulted in the sale of landed properties which he claims ownership of. The respondent was then the third defendant and he raised a counterclaim asserting ownership of the same landed properties. The applicant's suit was struck out while the respondent's counterclaim was decided in favour of the respondent and against the applicant. The respondent was declared the rightful owner of the properties. In his affidavit in respect of this application, the applicant states how the notice of appeal that had been lodged within time had to be struck out

on 12th April, 2024 for failure to take essential steps. Going by paragraphs 7, 8, 9 and 10 the applicant's advocate was to blame for the applicant's fate. The applicant parted ways with that former advocate. Upon hiring a new advocate, it was decided that the applicant could only assail the decision of the High Court by way of revision. Hence this application for extension of time to apply for revision. The applicant accounts for the delay that was caused by his former advocate's inaction, and that he refused to take an affidavit to support the application. He alludes to the fact that even before the instant application, he had filed Civil Application No.356/17 of 2024 but that application was subsequently struck out for having impleaded wrong parties. In view of that narration, the applicant has three main factors which he wishes would prompt me to grant the application. The first is that of his former advocate's negligence. As said before, the said learned advocate's alleged inaction caused the first notice of appeal to be struck out and that the applicant's relationship with that advocate was such that he would not take an affidavit in support of the application, The second is that the decision sought to be challenged has an illegality in that the counter claim was time barred. The third reason is that the applicant was throughout in Court pursuing this matter. 2

However, aware of the settled law that a revision is not an alternative to an appeal I interrogate the applicant's justification for stating at paragraph 10 that: 10. THAT, from 12th April\ 2024 was to and from my former advocate office for assistance until it became apparent that nothing was being done and as thus on 19th May, 2024, I came into contact with my present advocate Mr. Derick Kahigi and upon delivering to him the copy o f the Judgment, plaint, the respondent written statement of defence and other case file documents, advised me which advice I verily believe to be true that under the circumstances of this case the only remedy available to me is to challenge the High Court decision by way of revision as it contains illegality much as the counter-claim was time barred and the High Court ought to have dismissed it as it has no jurisdiction to entertain any matter which is time barred. He further advised me to file the application for extension of time to file the said revision out o f time for, the statutory time to file the application the application for revision o f the impugned decision, had elapsed already. I shall test the above against the laid principles in the case of Halais Pro Chemie v. Wella A. G [1996] T.L.R 269. In that case, the following key factors were established: "(it) Except under exceptional circumstances a party to proceedings in the High Court cannot 3

invoke the revisiona/jurisdiction o f the Court as an alternative to the appellate jurisdiction o f the Court (iii) A party to proceedings in the High Court may invoke the revisiona! jurisdiction o f the Court in matters which are not appealable with or without leave (iv) A party to proceedings in the High Court may invoke the revisiona / jurisdiction o f the Court where the appellate process has been blocked by judicial process". I am fully aware of the fact that I am not determining an application for revision yet. However, I cannot grant an application for extension of time for a party to do what is legally untenable lest I be guilty of misuse of my discretion. In other words, if I proceed to grant extension of time before considering the tenability of the intended application for revision, I will be supplying the applicant with pain killers leaving the illness untreated and delaying the applicant's pursuit for substantive justice even more. Mr Derick Kahigi learned advocate who was being assisted by Mr. George Kato Mushumba also learned advocate, was more preoccupied with the reasons for the delay did not bother about addressing the justification for preferring a revision. Mr. Mlyambelele Ng'weli learned advocate for the respondent addressed this point briefly. He submitted that the mere fact that the

applicant's initial notice of appeal was struck out does not justify opting to apply for revision instead of an appeal. With respect I agree with Mr. Ng'wele. Many a time notices of appeal have been struck out but parties do correct any errors that may have caused the striking out and reinstitute appeals. This position of the law has been stated in several decisions including Dhow Mercantile (EA) Ltd v. Registrar of Companies & Others [2005] TZCA 4. In this case the Court gave the following guidance: "What was required o f the appellant was to apply to the High Court for extension of time to file notice of appeal out o f time. Once the application for extension o f time sought is granted then the appeal so reinstituted would be based on a valid notice o f appeal". The applicant seems to labour under the impression that the so- called illegality of the decision of the High Court proceeding with a counter claim that was time barred, cannot be a ground of appeal. That is totally wrong in my view because invariably, decisions of courts are faulted on points of law and points of fact. In fine, since the applicant was a party in the proceedings before the High Court, and the appellate process has not been blocked by judicial 5

process, I find this application for extension of time to apply for revision to be misconceived and incompetent and I strike it out, with costs. DATED at DODOMA this 19th day of March, 2026. I. P. KITUSI JUSTICE OF APPEAL The Ruling delivered virtually this 19th day of March, 2026 in the presence of Mr. George Mushumba, learned counsel for the Applicant and Mr. Mlyambelele Ng'weli, learned counsel for the Respondent and Mr. Issa Issa, Court Clerkja.hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 6