Jenga Said & Others vs Blanket Manufacturers Ltd & Others (Civil Application No. 716/01 of 2023) [2025] TZCA 1310 (23 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 716/01 OF 2023 JENGA SAID ..................... . .................................................. . ...... 1 st APPLICANT YAHAYA KAGUNA ........................................................................ 2 nd APPLICANT PIUS MAPIMA .............................. . ..............................................3 rd APPLICANT VERSUS BLANKET MANUFACTURERS LTD..........................................1 st RESPONDENT THE TREASURY REGISTRAR.................................................. 2 nd RESPONDENT THE ATTORNEY GENERAL . ..... . ......... . ................................... 3 rd RESPONDENT (Application for Extension of Time within which to Restore the Dismissed Appeal from the Court of Appeal of Tanzania, at Dar es Salaam) (Mbarouk. Mwariia, Ndika, JJ.A.l dated the 23rd day of October, 2017 in Civil Case No. 307 of 2000 RULING 13th May & 23rd December, 2025 KHAMIS. J.A.: The applicants, Jenga Said, Yahaya Kaguna and Pius Mapima on behalf of 241 others, were aggrieved by a decision of the High Court of Tanzania at Dar es Salaam (the High Court) in Civil Case No. 307 of 2000 which was decided in favour of the respondents. As such, they filed Civil Appeai No. 37 of 2008. Previously, the applicants had sued the Blanket Manufacturers Ltd (the first respondent) and the Presidential Parastatal Sector Reform i

Commission (the PSRC) for payment of TZS 337,632,485.00 as the outstanding statutory terminal benefits, salaries, overtime, pension contribution and other related claims following termination of their employments in December, 1997. It was alleged that, the applicants were employees of the Blanket Manufacturers Ltd, a specified public corporation which by virtue of Government No. 400 of 1995 was placed under the control of the PSRC as an official receiver. The applicants also claimed interest on the outstanding sum at the rate of 35% per annum from December 1997 to the date of full and final payment, interest on the decretal sum at the court's rate from the date of judgment to the date of full and final payment, costs of the suit and any other relief as the trial court deems fit and just to grant. In defence, the first respondent and the PSRC maintained that, the first respondent had ceased production and the claims were unjustified. Upon trial, the High Court was satisfied that the applicants' claims were untenable and thus, dismissed the suit with costs. Aggrieved by that decision, the applicants issued a notice of appeal and formally lodged Civil Appeal No. 37 of 2008 as earlier on stated. However, the appeal was dismissed on 23rd October, 2017 for non 2

appearance of the applicants and their advocate, the late Mr. Dominick Kashumbugu. Owing to continuous ailment of the late Mr. Kashumbungu and being unaware of the dismissal order, the applicants engaged Mr. Mathew Kabunga, learned advocate, to represent them in the pending appeal. Mr. Kabunga wrote some letters to the Registrar of the Court inquiring on status of the pending appeal. On 10th November, 2020 the Registrar replied that, Civil Appeal No. 37 of 2008 was dismissed since 23rd October, 2017. Determined to set aside the dismissal order and restore the appeal, on 24th December, 2021 the applicants preferred Civil Application No. 668/01 of 2021. Nonetheless, the application was confronted with a notice of preliminary objection for joining the Treasury Registrar and the Attorney General who were not parties to the original Civil Appeal No. 37 of 2008. The Court in a ruling delivered on 25th July, 2023 (Makungu, J.A) sustained the preliminary point of law and struck out the application with costs. Following the striking out of Civil Application No. 668/01 of 2021, the instant application was lodged on 29th September 2023 for extension of time to apply for restoration of Civil Appeal No. 37 of 2008. The application

was made by way of notice of motion under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The notice of motion was supported by an affidavit sworn by Pius Mapima, the third applicant. The deponent stated that, the appeal was dismissed because the notice of hearing was wrongly served on M/s Crax Attorneys, a law firm that was not in the conduct of the appeal instead of their duly appointed counsel, the late Mr. Kashumbugu. The deceased counsel operated a firm in the name and style of Dominic Kashumbugu & Co. Advocates. On the delay to file the application for setting aside the dismissal order, the deponent said owing to the big number of the applicants who were scattered in various places countrywide, it was impractical to contact them and unanimously agree on how to engage an advocate to act on their behalf, without a delay. The respondents filed an affidavit in reply deposed by Ms. Pauline Fridoline Mdendemi, learned State Attorney who disputed the applicants7 allegations. She deposed that, the applicants did not prove that, they were represented by the late advocate Kashumbugu and that, he was sick at the material time. Further, she deposed that, the applicants failed to account for almost one year and one month from 10th November, 2020 when they were notified by the Registrar that Civil Appeal No. 37 of 2008

was dismissed by the Court up to 24th December, 2021 when they filed Civil Application No. 668/01 of 2021. In further reply, Ms. Mdendemi deposed that, apart from the failure to prosecute the dismissed appeal with diligence, the applicants failed to account for two months' delay from 25th July, 2023 when Civil Application No. 668/01 of 2021 was dismissed by the Court up to 29th September, 2023 when the application for restoration was filed in Court. At the hearing of this application, the applicants were represented by Mr. Majura Magafu, learned advocate, while Mr. Boaz Msoffe, learned State Attorney from the office of the Solicitor General, appeared for the respondents. In support of the application, Mr. Magafu urged this Court to exercise its discretion under rule 10 of the Rules and extend time for the applicants to apply for restoration of Civil Appeal No. 37 of 2008 which was dismissed by the Court on 23rd October, 2017. He adopted the affidavit of Pius Mpima in support of the notice of motion and contended that, the delay to file the application was technical and justified in view of the illegalities that were apparent on the face of the record.

The learned counsel expounded that, the notice for hearing of the appeal was inadvertently served on M/s Crax Attorneys, a law firm that was not on record to act for the applicants whose advocate was the late advocate Kashumbugu. On that basis, he submitted that, the applicants were not duly notified of the hearing date and therefore, the appeal should not have been dismissed for the reason of their absence. He invited the Court to consider this as an illegality on the face of the record. Mr. Magafu further referred us to Civil Application No. 668/01 of 2021 that was struck out by the Court for incompetency. He contended that, the striking out of Civil Application No. 668/01 of 2021 was itself a technical delay to file this application. He submitted that, the record of this application spoke volumes of the applicants' concerted efforts to ensure the dismissed appeal is heard on merits. As such, he urged this Court to consider the various steps employed by the applicants towards restoration of the appeal and hence allow the application in order to meet the ends of justice. In reply, Mr. Msoffe submitted that, the discretion to extend the time must be exercised within set principles as decided in various decisions of this Court. He adopted the affidavit in reply and contended that, the applicants defaulted to account for the period of delay from 10th 6

November, 2020 to 24th December, 2021 and from 25th July, 2023 to 29th September, 2023. However, he conceded that, the delay from 24th November, 2021 to 25th July, 2023 was indeed a technical one. The learned counsel cited the case of Bahati M. Ngowi v. Paul Aidan Ulungi [2020] TZHC 3375 (23 April 2020) for the proposition that, for a person who delays to take the necessary steps in pursuing his right in a court of law, he is bound to observe the rules of procedure and adhere strictly to the statutory requirements of the law. Reliance was also placed on the previous decision of the Court in the case of Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported) where it was held that, delay, of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which steps have to be taken. The learned State Attorney urged the Court to disregard the submissions by Mr. Magafu on the ground that, they were mere statements from the bar without the evidential backup. In support thereof, he cited the decision of the Court in the case of Said Sultan Ngalemwa v. Isack Boaz Ng'iwanishi & Others, Civil Application No. 362/17 of 2021 [2022] TZCA 684 (4 November 2022) where a Ugandan case of Transafrica Assurance Co. Ltd v. Cimbria (EA) Ltd [2002]

E.A 627, was cited with approval, thus, a statement of fact by the counsel from the bar is not evidence and therefore, the court should not act on it. In addition, Mr. Msoffe asserted that, the applicants failed to show any illegality which could justify the grant of the application. On that basis, he urged Court to dismiss the application with costs. On rejoinder, Mr. Magafu reiterated his earlier submissions and submitted that, it was not necessary for the applicants to attach copies of the record of appeal which was duly served on the respondents. Further, he contended that, by virtue of their appearance in Civil Appeal No. 37/2008, the respondents' counsel are well aware that, the applicants were never represented by M/S Crax Attorneys but rather, it was the late Mr. Kashumbugu who acted for them. Since the notice of hearing was not served on him, then it was not just to dismiss the appeal, he argued. Further, the learned counsel for the applicants submitted that, all cases cited by Mr. Msoffe were distinguishable from the circumstances of the present application. Over the years, this Court has set down principles upon which it exercises the discretion to extend time, as per rule 10 of the Rules, which reads: 8

"The Court may, upon good cause, extend the tim e lim ited by these Rules or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that tim e and whether before or after the doing o f the act; and any reference in these Rules to any such tim e sh a ll be construed as a reference to that tim e as so extended." The said principles were stated in several cases including the Principal Secretary, Ministry of Defence and National Service v. Devram Valambia [1992] T .LR 387; Dar es Salaam City Council v. Jayantilal P. Rajan, Civil Application No. 27 of 1987 [1988] TZCA 26 (25 February 1988); Lyamuya Construction Company Limited v. Board of Registered Trustees of Christian Young Women Association of Tanzania, Civil Application No. 2 of 2010 [2011]TZCA 4 (3 October 2011); and Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001 [2004] TZCA 45 (18 April 2004).

In the case of Monday Kachingwe v. Athumani Salum Kitambazi, Civil Application No. 115/7 of 2023 [2024] TZCA 642 (26 July 2024) the law was restated, thus: "In as fa r as illegality, as a ground in extension o f time, is concerned[ it is now settled that ille g a lity o f the im pugned decision constitutes good cause fo r purposes o f extension o f tim e." In VIP Engineering and Marketing Limited & 2 Others v. Citibank Tanzania Limited, Consolidated References No. 6,7 and 8 of 2006 [2007] TZCA 165 (26 September 2007), the Court alluded that: "We have already accepted it as established law in this country that where the point o f law a t issue is the ille g a lity or otherwise o f the decision being challenged, that by its e lf constitutes "sufficient reason" within the meaning o f rule 8 (now rule 10) o f the rules fo r extending tim e" In the case of Lyamuya Construction Company Limited (supra), the Court referred to its earlier decision in the case of Devram Valambia (supra) and observed that, in as far as illegality is concerned, it must be 10

of sufficient importance. That, it must be apparent on the face of the record, such as the question of jurisdiction and not one that would be discovered by long drawn arguments or process. The bone of contention between the parties in the instant application is whether the applicants were properly served with a notice of hearing before their appeal was dismissed by the Court. I understand that a lack of proper service of the notice of hearing or summons may significantly affect the court's jurisdiction. Rule 22 of the Rules provides that, where any document is required to be served on any person, service may be affected in accordance with the procedure and practice of the High Court under the provisions of the Civil Procedure Code (the CPC) read together with the provisions of the Rules or as the Court may direct. Order V Rule 8 of the CPC provides that, wherever it is practicable, service should be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. It is common knowledge that, the procedure available in the CPC is that, service of a document must be effected on the party in person, his agent or a duly appointed advocate. It transpired in this appeal that, the notice of hearing of the dismissed appeal was served on M/s Crax Attorneys instead of M/s Dominick 11

Kashumbugu & Co. Advocates who had the conduct of the appeal. The learned State Attorney submitted that, the allegation was not supported by the evidence on record as the applicants did not produce documents to show their dealings with the late Mr. Kashumbugu. I find this argument novel as the affidavit in support of the application and the supporting documents were clear on this. They showed that, throughout the proceedings in the lower court and up to the filing of the dismissed appeal, the applicants were represented by the late advocate Dominick Kashumbugu. On the contrary, the respondent did not supply any evidence to counter the applicants' averment that, M/s Crax Attorneys acted for the applicants at any stage of the dispute so as to receive the notice of hearing of the appeal on their behalf. Having considered the counsel rival submissions, the affidavit in support of the notice of motion and the affidavit in reply, I entirely agree with Mr. Magafu that, the propriety of service of the notice for hearing of Civil Appeal No. 37 of 2008 is a legal issue worth determination by the Court in the intended application for restoration of the dismissed appeal. In the circumstances, I am satisfied that, the applicants have shown a good cause to warrant this Court grant the application for extension of time in terms of rule 10 of the Rules. Consequently, time is hereby 12

extended for the applicants to file the intended application for restoration of Civil Appeal No. 37 of 2008. The same to be filed within sixty (60) days from the date of delivery of this ruling. Costs to be in the cause. It is so ordered. DATED at DODOMA this 23rd day of December, 2025. Ruling delivered this 23rd day of December, 2025 via virtual Court, in the presence of Mr. Boaz Msoffe, learned State Attorney for the Respondents, in absence of the Applicants and Mr. Issa Issa, Court Clerk; is hereby certified as a true copy of the original. A. S. KHAMIS JUSTICE OF APPEAL W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 13