Njombe Outgrowers Services Company Ltd vs Njombe Filling Station Company Ltd (Civil Application No. 1252 of 2024) [2025] TZCA 1318 (30 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1252 OF 2024 NJOMBE OUTGROWERS SERVICES COMPANY LTD (NOSC) ....... APPLICANT VERSUS NJOMBE FILLING STATION COMPANY LTD ............................... RESPONDENT (Application for extension of the time within which to lodge an appeal out of time against the Ruling and Drawn Order of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Aqatho, 1 .) Dated 14th day of December, 2022 in Commercial Case No. 74 of 2022 RULING 27th August & 30th December, 2025 MWARIJA. J.A.: By a notice of motion lodged on 15/11/2024, the applicant, Njombe Outgrowers Services Company Ltd (NOSC) has moved the Court under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking an order granting it extension of time to appeal against the ruling of the High Court, Commercial Division at Dar es Salaam in Commercial Case No. 74 of 2022. The application was opposed by the respondent through an affidavit in reply sworn by Mr. Boniface A. K. Mwabukusi, who was the respondent's advocate in the trial court. i

In the main case, Civil Case No. 74 of 2022 (the suit), the respondent, Njombe Filling Station Limited was the plaintiff. On 14/12/2022, the suit was marked withdrawn at the instance of the respondent upon the prayer made by its learned counsel, Mr. Kanyambo. The trial court (Agatho, X, as he then was) marked the suit withdrawn with leave to refile it. Considering the stage of the proceedings at which the decision to withdraw the suit was made by the respondent (after the final pre-trial conference), the appellant was awarded the costs of the suit. The appellant was aggrieved by the order granting the respondent leave to refile the suit and therefore, intended to appeal against the trial court's order dated 14/12/2022. It consequently filed a notice of appeal to the Court on 22/12/2022 and because at the material time, the trial court's order was not appealable without the leave of the High Court or this Court, it also filed an application to that effect before the trial court; Miscellaneous Commercial Application No. 5 of 2023. That application was dismissed on 19/6/2023 by Nangeia, J. (as he then was). Undaunted, the appellant came to the Court by way of a second bite vide Civil Application No. 507/01 of 2023 seeking the same order. However, by the order dated 1/11/2024, the application was marked 2

withdrawn by Mlacha, JA. upon the prayer made by the learned counsel for the applicant. In paragraph 14 of the affidavit sworn by Mr. Daniel Bernard Welwel, the reason for withdrawing the application before the Court was the pertaining position of the law after amendment of section 5 of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws by the Legal Sector Laws (Miscellaneous Amendment) Act, 2023 whereby the requirement of leave to appeal against the decisions of the High Court which were not specified under section 5 (1) (a) and (b) was done away. He stated as follows: "14. When the said C ivil Application No. 507/01 o f2023 was s till pending before the Court, it also came to my knowledge that the position o f law has changed and currently there is no longer a requirem ent fo r any aggrieved party to obtain leave to appeal against an order or decree made by the High Court in the exercise o f its original, appellate or revisiona/jurisdiction.> ' It was after the withdrawal of the said application before the Court and after having received a copy of the withdrawal order that the appellant 3

filed this application as shown above. The deponent states as follows in paragraphs 19 and 20 of his affidavit: "19. Im m ediately after receiving the above-m entioned order and upon considering that the entire proceedings as w eii as the decision o f Com m ercial Case No. 74 o f 2022 were already and/or tim ely supplied to the applicant when she was s till pursuing an order fo r leave to appeal, hence it is now necessary fo r the applicant to prefer the present application. 20. A s deposed in paragraphs 5 and 7 above, I state that the decision in Commercial Case No. 74 o f 2022 which the applicant intends to appeal against is problem atic. The intended appeal raises serious questions o f law and fact worth the attention and adjudication by this Honourable Court. I refer and attach a copy o f the intended memorandum o f appeal m arked A n nexture N O SC - B to form part o f the affidavit." A stated above, the application was opposed by the respondent. Although in his affidavit in reply, the deponent did not oppose the contents of paragraphs 14 and 19 of the supporting affidavit, he disputed the averment in paragraph 20 that, the decision which is 4

intended to be appealed against is problematic thus warranting a grant of the application so that the arising legal issues may be determined. When the application was called on for hearing, the applicant was represented by Mr. Daniel Welwel, learned counsel while the respondent was represented by Mr. Kelvin Kuboja Gamba, also learned counsel. Both Advocates for the applicant and the respondent had filed their respective written submissions in support of the appeal and the reply thereto in terms of sub-rules (1) and (7) of rule 106 of the Rules respectively. At the hearing, both Mr. Welwel who appeared in Court and Mr. Kuboja who appeared virtually from Mbeya made oral submissions highlighting their written submissions. Submitting in support of the application, after having narrated the background facts, Mr. Welwel argued that, the delay in filing the appeal was due to the pendency of the proceedings in Miscellaneous Commercial Application No. 5 of 2023 in which, as stated above, the applicant was seeking leave to appeal. The learned counsel argued that, since the applicant had been in court pursuing the application for leave to appeal which was, at the material time, a legal requirement for filing an appeal, the process amounted to a sufficient cause for grant of the application for extension of time because the delay was essentially 5

based on the requirement of the law hence a technical delay. In his oral submission, he cited the cases of Saulo Malima v. Petro Kingoni (Civil Appeal No. 154 of 2022) [2024] TZCA 436 and Bella Benedict Kimoso v. The Hon. Attorney General and 2 Others, Civil Application No. 188/01 of 2024 [2025] TZCA 608 to buttress his argument. He stressed that, the applicant had been diligently prosecuting the application for leave to appeal but after the stated amendment which did away with the requirement of leave to appeal against the decision in question, that application was withdrawn and the applicant filed the present matter. He cited the case of Royal Insurance Tanzania Limited v. Kiwengwa Strand Hotel Limited, Civil Appeal No. I l l of 2009 (unreported) to support his argument that, the above stated reason warrants a grant of extension of time. He also argued that, the respondent will not suffer any prejudice of the application is granted and further that, the applicant stands greater chance if success in the intended appeal. On the ground that the decision which is intended to be challenged is tainted with illegalities, the learned counsel submitted that, the High Court granted the application for withdrawal of the suit with

leave to refile without having satisfied itself with the requirements of Order XXII rule 1 (2) (a) and (b) of the Civil Procedure Code Cap 33 [R.E. 2019] (the CPC). It was his argument that, from the stage at which the proceedings had reached whereby a final pre-trial conference had been conducted and the statements of the witnesses had been exchanged thus awaiting the final stage of cross-examining the witnesses, the grant of the order to refile the suit amounted to an abuse of the court process. In reply to the submission made by the learned counsel for the applicant, Mr. Gamba opposed the application. He adopted the contents of the affidavit in reply filed on 2/1/2025. In paragraph 3 of the affidavit, the deponent did not deny the contents of paragraph 14 of the supporting affidavit. He did not also state anything as regards paragraph 19 thereof. With regard to paragraph 20, he denied the contents thereof stating as follows in paragraph 8 of the affidavit in reply: "S. That the contents o f paragraph 20 o f the ap p lican t's] affidavit is vehemently disputed and the respondent further avers that, the intended memorandum o f appeal did not disclose or show any novel point o f law worth to be determ ined by the Court o f 7

Appeal as the intended memorandum o f appeal is compromised by the facts . " The learned counsel reiterated the guiding principles for the court's exercise of its power to extend time under rule 10 of the Rules as stated in the case of Lyamuya Construction Company Limited v. The Board of Trustees of Young Women's Christian Association of Tanzania, (Civil Application No. 2 of 2010) [2011] TZCA 513. He argued that, the applicant has not met those conditions; which are that: " (a) The applicant m ust account for a ll the period o f delay. (b) The delay should not be inordinate. (c) The applicant m ust show diligence and not apathy, negligence or sloppiness in the prosecution o f the action that he intends to take. (d) I f the court feels that there are other sufficient reasons such as the existence o f a point o f law o f sufficient im portance; such as the ille g a lity o f the decision sought to be challenged." He argued that, the applicant has failed to account for the period of delay of 332 days from the date when he became aware of the amendment by Act No. 11 of 2023 which come into force on 1/12/2023

and 28/10/2024, the date on which he lodged in the Court, his notice of withdrawal of the application for leave to appeal. He stressed that, the applicant was bound to file his notice of withdrawal immediately after the amendment had come into force. On the case of Royal Insurance (supra) cited by the learned counsel for the applicant, Mr. Gamba argued that, the same is distinguishable in that, whereas in the cited case, the applicant acted immediately after becoming aware that the law had changed, in this case, the applicant delayed for 332 days and failed to account for such delay. When he was highlighting his written reply submissions, the learned counsel stressed that, he did not have qualms with the period . £'*■ ' within which the applicant was pursuing his application for leave. His discord was on the period after the applicant had learnt that, the law had been amended. Citing case of Zuhura Salum Mohamed v. Azania Bank Ltd and Others (Civi! Application No. 13/17 of 2023) [2025] TZCA 780, he stressed that, every day of the delay must be accounted, the duty which, according to him, has not been discharged by the applicant. On the contention by the learned counsel for the applicant that the respondent will not suffer any prejudice if the application is granted, Mr.

Gamba argued that, the respondent will be prejudiced. As to the contention that the decision sought to be appealed against is problematic, he opposed the argument stating that, the applicant has not demonstrated existence of the alleged illegalities. He cited the case of Josephat Joseph Mushi and Another v. Tanzania Postal Bank PLC and Another, Civii Appeal No. 86 of 2022 [2024] TZCA 1174 to bolster his argument. In that case, the Court observed that, an application for extension of time may be granted on the ground that, the impugned decision is tainted with illegalities only where such a decision was made by a court without jurisdiction, that a party was not afforded the right to be heard or that the decision was based on a matter which was time barred. Furthermore, on the contention that the trial court wrongly granted the respondent leave to refile the suit, Mr. Gamba argued that the court had that power in terms of the provisions of Order XXIII rule 1 (2) (b) of the CPC. From the submissions of learned counsel for the parties, the main issue for determination is whether the applicant has established a sufficient cause for the delay in instituting the appeal within the prescribed time. It was not disputed that, before the amendment of 10

section 5 of the Appellate Jurisdiction Act, the impugned order was appealable with leave of the High Court or of the Court of Appeal. It was not disputed further that, the period spent by the applicant in pursuing his application for leave to appeal in the High Court after filing the notice of appeal on 22/12/2022 and 1/11/2024 when the application for leave to appeal filed in this court after the first application to the High Court was refused, is excludable from computation of the limitation period. - See for instance, the case of Royal Insurance Tanzania Limited (supra) cited by the learned counsel for the applicant. The learned advocates are at issue as regards the period between the date of withdrawal of the application before this Court and the date on which the applicant filed this application, that is, on 15/11/2024. Mr. Gamba argued that the applicant has failed to account for those days as it is trite law that, every day of the delay must be accounted. Having considered the parties' respective affidavits and the submissions of their advocates, I have been unable to agree with the learned counsel for the respondent. In paragraphs 18 of the supporting affidavit, it was stated that: "18. That after follow -ups on 8th November 2024 my colleague advocate obtained form the honourable li

court the said order which m arked C ivil Application No. 507/01 o f2023 withdrawn." It was averred under paragraph 19 of the affidavit as reproduced above, that the application was filed immediately after the applicant had received a copy of the withdrawal order. As indicated above, in its affidavit in reply, the respondent did not oppose the contents of paragraph 19 of the supporting affidavit. It did not also dispute the contents of paragraph 18 thereof. From the record, this application was filed on 15/11/2024 after the applicant had obtained a copy of the withdrawal order on 8/11/2024. Since the applicant had obtained all the necessary documents in respect of the proceedings of the High Court, including a copy of the order which refused the application for leave to appeal, it was ready to file the appeal after having complied with the provisions of rule 90 (1) of the Rules, However, it preferred a second application to this Court. Whether that was proper or otherwise, is not a matter to be determined in this application for extension of time. It suffices to state here that, ' 7 until when the application before the Court was determined, the applicant could not institute the intended appeal. It is worth to observe also that, even though the period spent in pursuing the said application 12

does give the applicant the right of exclusion of time under rule 90 (1) of the Rules, the fact that the application for leave to appeal was pending, constituted a sufficient cause. See the case of Mrs. Kamiz Abdullah MD. Kermal v. The Registrar of Buildings and Miss. Hawa Bayona [1988] TLR 199. In that case, the Court held in te r a lia that: " Where delay in instituting appeal is caused by good reasons, other than the tim e taken in preparing the record o f appeal, a prudent party to the proceedings may safeguard its position by applying fo r extension o f the period prescribed fo r the doing o f any act. I t w as th u s open fo r th e a p p e lla n t in th is case, p a rtic u la rly a t th e tim e he w as a p p lyin g fo r le a ve an d c e rtific a te o f th e H igh C o u rt to a lso a p p ly to th is C o u rt to e xte n d o r en larg e th e p e rio d fo r in s titu tin g th e a p p e a l." [Emphasis added] Since from the submissions of Mr. Gamba there was no dispute as regards the technical delay, that is the period within which the applicant was pursuing his application for leave to appeal both in the High Court and this Court, the discord between the parties narrows down to the period between the date of withdrawal of the application for leave to 13

appeal before the Court and the date of filing this application. As shown above, after withdrawal of the application, the applicant sought and obtained a copy of the withdrawal order on 8/11/2024 and on 15/11/2024, it filed this application. Taking inspiration from rule 90 (1) of the Rules, which provides a period of 60 days for the intended appellant to file an appeal after obtaining all the necessary documents, I do not, with respect, agree with the respondent's counsel that, the applicant has failed to account for the period between 8/11/2024 and 15/11/2024. In my considered view, the period of seven (7) days spent by the applicant to prepare and file the application, show that, it was diligent enough. In the case of Hamis Mohamed (the administrator of the estate of the late i Risasi Ngwaie) v. Mtumwa Moshi (the administrator of the estate of the late Moshi Abdallah Civil Application No. 407/17 of 2019 (unreported), the Court found that, a period of less than a month spent by the applicant in filing a similar application after the previous application for extension of time was struck out, was reasonable. It observed that: 'A fter the latter application was struck out, the applicant took hardly a month to file the present application seeking extension o f tim e to fife an 14

appeal. In other words, the applicant was diligent a ll along to file an appeal." On the basis of the foregoing reasons, I find that, the applicant has accounted for the period of the delay. As that finding suffices to dispose of the application, I find no need to determine the issue relating to existence or otherwise of illegalities in the decision which is intended to be appealed against. In the event, I allow the application and grant the applicant extension of time to institute the intended appeal. The appeal should be filed within sixty (60) days of the date of delivery of Ruling delivered this 30th day of December, 2025 in the presence of Mr. Erick Mhimba, learned counsel for the applicant, Mr. Kelvin Kuboja, learned counsel for the respondent via virtual Court and Ms. Thabitha Daniel Court Clerk; is hereby certified as a true copy of the original. this ruling. Each party to bear its own costs. DATED at DODOMA this 24th day of December, 2025. A. G. MWARD A JUSTICE OF APPEAL 15