Hamis Mdida & Another vs The Registered Trustees of Islamic Foundation (Civil Application No. 1435 of 2024) [2025] TZCA 1242 (5 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1435 OF 2024 HAMIS MDIDA................................................................... 1 st APPLICANT SAID MBOGO..................................................................... 2 nd APPLICANT VERSUS THE REGISTERED TRUSTEES OF ISLAMIC FOUNDATION......................................................................RESPONDENT (Application for extension of time to Appeal to the Court of Appeal of Tanzania out of time against the decision of the High Court of Tanzania at Tabora) f Mallaba. J.1 dated the 26th day of July, 2016 in Land Application No. 41 of 2015 RULING 13thNovember & 5th December, 2025 KITUSI. J.A.: In this application for extension of time, most of the material facts are matters of common ground and the applicable law is settled. I note that the period of the delay is either ten days according to the version of the applicants and Mr. Kelvin Kayaga, learned advocate who prosecuted the application on behalf of the applicants, or nineteen days as submitted by Mr. Method Kabuguzi, also learned advocate who appeared for the respondent to contest it. i

I will, therefore, resolve the issue of the period of the delay then determine whether it has been accounted for or not. According to the affidavits presented by the parties to support their respective positions in the case, the brief background of the matter is as follow: "The case commenced at the District Land and Housing Tribunal (DLHT) as Land Application No. 44 o f 2014. Thereafter, it went to the High Court as Land Appeal No. 41 o f 2015 which was decided against the present applicants". Originally, the applicants timeously appealed to the Court but that appeal was struck out on grounds not relevant for the purpose of this ruling. The applicants had to start all over it again by lodging a fresh notice of appeal having obtained the requisite extension of time. However, the applicants could not appeal within the statutory 60 days, because of what they argue to be good cause in the instant application. In compliance with rule 90(1) of the Court of Appeal Rules, 2009 (the Rules), the applicants wrote to the Registrar for him to supply them with the documents necessary for preparation of the appeal. There is yet no dispute that the Registrar responded on 20/11/2024 informing the applicants that the documents were ready for collection. 2

According to the respondents, this application was lodged on 10/12/2024 which is 19 days from 20/11/2024. It is submitted by Mr. Kabuguzi that 19 days is way too long for preparation of a simple application for extension of time as the present. He has also argued that the applicants have not accounted for each of those 19 days. On the other hand, Mr. Kayaga has maintained that the application would have been filed on 29/11/2024 had is not been for failure on the electronic filing system which could not generate the control number for making the necessary payment of filling fees. He concedes that the actual filing was done on 10/12/2024 when the control number was eventually generated by the system. The learned counsel has submitted that what took place between 20/11/2024 to 10/12/2024 regarding failure of the system cannot be substantiated by affidavit. In the alternative he submitted further that even if we were to go with the respondent's version, 19 days is not an in ordinate period, citing the case of Attorney General v. Oysterbay Village Limited & Another Civil Application No. 299 of 2016 [2017] TZCA 146 in which the delay of 45 days was considered not that long. In opposition, Mr. Kabuguzi submitted that the application is not supported by any evidence because what we have is no more than Mr.

Kayaga is mere word from the bar. Mr. Kayaga seems to concede this as he explains that it would not have been possible for him to have included in the affidavit the facts as to the frustrations he encountered in the course of filling this application electronically. This, in my view poses a practical question, how would the applicant or his advocate have figured out that there would be failure of the electronic system for him to have on affidavit detailing events in anticipation?. It would require a prophet to do so, in my view. Mr. Kayaga has also submitted that what transpired in relation to the failure in the electronic system may be verified and taken judicial notice of by the Court. I need not take that route, because failure in the electronic filing system is not uncommon, although each case must be determined on its own set of facts. When I apply reason to the case at hand as I should, I find that the period of the delay between 10 to 19 days is not inordinate and has been accounted for in the peculiar circumstances of this case. The rule requiring an account for each day of the delay is not cast on stone, I am a afraid, that is why the period of 45 days was considered to be not inordinate in Attorney General v. Oysterbay Villas (supra) but could be considered long in other circumstances.

That spares me the duty to pronounce myself on the issue of illegality. This application is granted. The applicant is given 60 (sixty) days from the date of the delivery of this ruling, to appeal against the judgment and decree in Land Appeal No. 41 of 2015, High Court, atTabora. Cost to abide the result of the intended appeal. DATED at DAR ES SALAAM this 5th day of December, 2025. I. P. KITUSI JUSTICE OF APPEAL The Ruling delivered this 8th day of December, 2025 in the presence of Mr. Kelvin Kayaga, learned Counsel for the Applicants via Teleconference, in the absence of the Respondent, but in the presence of Ms. Anna Utou, Court Clerk; is hereby certified as a true copy of the original.