Njenje Zefania vs Amos Shija (Civil Application No. 678/1 of 2024) [2025] TZCA 1247 (8 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 678/1 OF 2024 NJENJE ZEFANIA................................................................................. APPLICANT VERSUS AMOS SHIJA ..................................................................................... RESPONDENT (Application for seeking extension of time to lodge a notice of appeal arising from the decision of the High Court of Tanzania at Tabora which originated from Civil Appeal No. 226 of 2019 before the Court of Appeal from PC Civil Appeal No. 14 of 2018 in the High Court of Tanzania at Tabora, Civil Appeal No. 80 of 2017 before District Court of Kigoma and Original Civil Case No. 51 of 2017 Nguruka Primary Court) (Matuma, J.) dated the 14th day of September, 2023 in Misc. Civil Application No. 23 of 2022 RULING 10th November & lf f h December, 2025 KITUSI. 3.A.: The parties have been litigating over compensation for loss of the respondent's property caused by fire allegedly set on by the applicant. The matter began at Nguruka Primary Court Vide Civil Case No. 51 of 2017. The decision of the Primary Court in favour of the respondent was later quashed by the District Court on appeal. Subsequently however, the High Court restored the decision of the Primary Court, in favour of the respondent. l

The applicant intends to appeal that decision to the Court, but for some reasons, he did not lodge notice of appeal to do so within time. He has preferred this application for extension of time, stating in the affidavit as well as in the oral address to the Court, the reasons for the delay. The applicant's affidavit tells the following story. Originally the applicant filed Civil Appeal No. 226 of 2019 which however was struck out on 3r d November, 2022 for being time barred. Within the same month, on 23r d November, 2022 he filed Misc. Civil Application No. 23 of 2022 seeking extension of time to lodge a fresh notice of appeal, but it was refused on 14th September, 2025. For a short while the applicant disappeared from the scene until on 25th October, 2023 when he filed Civil Application No. 929 of 2023 for a second bite application for extension of time. During hearing of the instant application, Ms. Flaviana Francis, learned advocate who represented the applicant conceded that the second bite application was belatedly filed. It was withdrawn on 11th June, 2024. The applicant has invited the Court to consider that he has been; diligently prosecuting his case and that financial constraints involved in his

travels from Kigoma where he lives, to Tabora to get advocates, contributed to the delay. As I said a short while ago Ms. Francis represented the applicant basically strengthening what was averred in the affidavit. It is going to be my duty to consider these submissions. In Black's Law Dictionary 9th Edition, diligence is defined at page 522 as: "(2) care; caution; the attention and care required from a person in a given situation". In ordinary English, diligence means care and consciousness in doing something. Considering that meaning along the applicant's submissions, the question is whether the applicant was careful and conscious in pursing this matter. Civil Appeal No. 226 of 2019 was time barred and ended up being struck out. Civil Application No. 929 of 2023 for second bite was also filed out of time, and had to be withdrawn on 11th June, 2024. I am not too sure if this application filed on 4th July, 2024 after the withdrawal of the earlier application on 11th June, 2024 came in within time. In deciding what is diligence or lack of it in Zuber Mussa v. Shinyanga Town Council, Tabora Civil Application No. 3 of 2007 [2009] TZCA, the Court 3

left each Judge to decide the issue of diligence depending on the peculiar circumstances of each case, noting that to err is human. Then proceeded to observe: "If, for instance , an advocate is grossly negligent and makes the same mistake several times that is lack of diligence. But if he makes only a minor lapse or oversight only once and makes a different one next time that would not in my view, amount to lack of diligence". In this case the applicant and/or his advocate made two similar mistakes in one of which, with the Court's indulgence, the said applicant was permitted to withdraw. It is therefore my considered conclusion that the applicant was not meticulous and fell far below the standard in pursuing this application. Time and again, it has been emphasized that there is time frame for the taking of any action in Court. To spair the parties from being caught up in the web of time frames when pursuing second bite applications, rule 45A (2) of the Rules provides for a room whereby the Registrar may, by a certificate, exclude certain periods in computing time limit. 4

This is to say, even in the filing of this application, rule 45A (2) of the Rules has not been brought into play in order to exclude the period which the applicant and Court Registry spent in processing vital documents. In my final judgment, this application lacks merit. I dismiss it with costs. DATED at DAR ES SALAAM this 8th day of December, 2025. I. P. KITUSI JUSTICE OF APPEAL The Ruling delivered this 10th day of December, 2025 in the presence of Ms. Flavia Francis, learned counsel for the Applicant and in the absence of the Respondent and Ms. Rehema Makakala, Court Clerk, is hereby 5