Rajabu Hamis Magulati & Another vs Mole Agricultural Marketing Cooperative Society & Others (Civil Application No. 931 of 2023) [2025] TZCA 1188 (17 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 931 OF 2023 RAJABU HAMIS MAGULATI...................................................... APPLICANT RAJABU KOMBO RAJABU ...........................................................2N° APPLICANT AMINA ABAS RASHID (the Administratrix of the estate of the late HAMIS JUMA SHABANI)......................................3rd APPLICANT VERSUS MOLE AGRICULTURAL MARKERTING CORPERATIVE SOCIETY ...... ........ .......................................... RESPONDENT CHRISTIAN KIWELU.................................................................2N° RESPONDENT PETER MBEZI.................................................................. . ..... 3R° RESPONDENT THE NATIONAL MICROFINANCE BANK............... ................. 4™ RESPONDENT (Application arising from the decision of the High Court of Tanzania atTabora) (Kadilu, J .* ) dated the 27th day of October, 2023 in Misc. Civil Application No. 22 of 2022 RULING 10th & 17th November, 2025 MURUKE. 3.A The applicants, instituted Civil Case No 03 of 2015, in the High Court of Tanzania, Tabora Registry, against the respondents, claiming for total sum of USD 106,848.53, being the value of tobacco sold to the 1s t respondent after being persuaded by the 2n d and 3rd respondents, who were the 4th respondents i officer's. After fully hearing, the trial court dismissed the applicant's suit. While dismissing the applicant's suit, the trial court concluded as follows. " The suit in a nutshell succeeds only to the extent, and for avoidance of doubts that SAIDI RASHIDI MAGUIATI (DW1), SELEMANI SHABANJ KAWOYA (DW2) and such other associates that the Republic shall have chosen to prosecute be charged immediately. It could be for obtaining goods by false pretences or something." The applicants were not satisfied, they filed Civil Appeal No.309 of 2017, that was struck out by the Court, following preliminary objections filed by the respondents on defective certificate of delay on 4th November, 2022. The applicants then, filed Misc. Civil application No. 22 of 2022, before the High Court, seeking for extension of time to file Notice of appeal, which same was dismissed by Hon Kadilu, J on 27.10.2023. Intending to challenge the High Court decision, the applicants have filed present application as a second bite application seeking an extension of time within which to file Notice of appeal. The application is supported by an affidavit of Ms Stella Thomas Nyakyi an advocate dully instructed to represent the applicants. Same is resisted by an affidavit sworn by Mr. Akram William Magoti Juma, an advocate for and on behalf of the first respondent. 2n d and 3rd respondent did not file any affidavit in reply, despite being served by notice of publication on Nipashe Newspaper dated October 29, 2025 at page 18. The 4th respondent also, did not file reply affidavit to contest the same. At the hearing of the application, Ms. Stella Nyakyi learned counsel appeared before me representing the applicants, whereas Mr. Mugaya Kaitila Mtaki represented the first respondent. The 2n d and 3rd respondents did not enter appearance, despite of being dully served by substituted service in terms of the Notice of Publication in Nipashe Newspaper dated 29 October, 2025 at page 18. Therefore, in terms of Rule 63 (2) of the Rules, the application will be heard in their absence. The 4th respondent was represented by Dr George Mwaisondole learned counsel. The applicant counsel, at first adopted Notice of Motion, affidavit in support thereof and written submission filed earlier to support oral arguments. Her submission was that: applicants filed their earlier Notice within time, only that the appeal was struck out, on technicalities on the ground of defective Certificate of delay. After the appeal was struck on 3rd November, 2022, the applicant filed first application for extension of time to file Notice of appeal on 21s t November2022, which same was dismissed on 27th October, 2023. The applicant then filed present application on 10th November, 2023 as a second bite application. Ms. Nyakyi, insisted that the delay is technical, as was held in a number of cases including the cases of Fortunatus Masha v. Wiliam Shija and another TLR 1997 and Bank M (Tanzania) Limited v. Enock Mwakyusa, Civil Application No 861/01 of 2023. In short applicant counsel beseeched me to grant the extension sought. The first respondent counsel, apart from adopting written submission and affidavit in reply, he submitted that; applicants have not adduced sufficient cause to justify the delay for failure to accounts for 13 days of the delay from 3rd November, 2022 when first application was dismissed, to the date of filling present application. Applicants ought to account each day of the delay. Mr. Mtaki further submitted that the applicant's counsel at this stage is not supposed to submit on the earlier application for extension of time, dismissed at the High Court, to justify the reasons of the delay. In totality, the first respondent counsel prayed for dismissal of the application with costs. Dr. Mwaisondole for the 4th respondent, joined hands with the 1st respondent counsel on his prayer to dismiss the application on the grounds that applicant counsel has not adduced sufficient cause for the delay. The reliance of technical delay can be an excusable delay but not on negligence of the applicants as in the case at hand insisted the 4th respondent's counsel. Applicants have shown lack of diligence, citing to me the case of Lyamuya Construction Company limited vs The Board of Registered Trustee of Young Women Christina association of Tanzania Limited, Civil application No 2 of 201 (unreported), where the Court ruled that negligence on the part of the applicants cannot be ground for extension of time. In rejoinder, the applicant counsel insisted that, the defective Certificate of delay the cause of first appeal being struck out, was issued by the Deputy Registrar, applicants are not to blame. Applicant used 13 days to follow up copy of the ruling and prepare the present sound application. Applicants delay has been accounted for. In totality, applicant have adduced sufficient cause to justify the delay. Having heard the applicant counsel, the issue for my determination is whether the applicant has adduced sufficient cause, to warrant the Court to exercise its discretion to extend time. Pursuant to Rule 10 of the Rules, for an application of extension of time to be granted, the applicant is required to show good cause for the delay. The said Rule provides that: "The Court upon good cause shown, extend the time limited 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 doing of the act; and any reference in these Rules to any such time shall be construed as reference to that time as so extended" It is the discretion of the Court to extend the time in which to take step as prescribed by the rule above, however such discretion, must be exercised judiciously. In the exercise of such discretionary powers, the requisite condition that must be fulfilled by the applicant is that good cause must be given. This was well stated among others in the cases of William Shija v. Fortunatus Masha [1997] TLR 213. Mumello v. Bank of Tanzania [2006] I EA 227 and Kalunga and Company Advocates v. National Bank of Commerce [2006] T.L.R 235. The applicant's counsel has deposed in the affidavit that earlier appeal was struck out on technicalities on the account of defective certificate of the delay, issued by the Deputy Registrar. The striking out of the said appeal meant that the earlier Notice of Appeal, filed within time was also struck out. Such delay, falls within the meaning of technical delay as decided in the case of Mary Mchome Mbwambo and Another v. Mbeya Cement Company Ltd, (Civil Application No. 271/01 of 2016) [2016] TZCA 2545, the Court had this to say at page 12: "The applicants are, actually, saying that they were late because they spent a lot of time diligently pursuing their rights in the two Courts. The sequence o f events and prompt steps taken by the applicants till when they lodged the instant application positively accounts for the delay. To shut the door will, in the circumstances, cause injustice . " Further, on the same principal the court insisted in the case of Emmanuel R. Maira v. The District Executive Director, Bunda District Council, (Civil Application No. 66 of 2010) [2010] TZCA 87, that. "... where a party is shown to have diligently taken steps only to be caught up in web of technically and even if the error is shown to have been caused by an advocate, a sufficient cause is generally taken to have existed for the delay" Deducing from the affidavit in support of the application, after the impugned judgment was delivered on 8th May, 2017, the applicants filed Civil Appeal No. 309 of 2017. The applicants were in Court, until first appeal was struck out on 3rd November, 2022. The applicant then took the necessary steps to be able to appeal, which included filing of Misc application No. 22 of 2022 on 21st November 2022 at the High Court seeking for extension of time to file Notice of Appeal, which was dismissed by Hon Kadilu J, on 27th October 2023. The applicants are now before this Court on a second bite. All the above efforts by the applicant is for them to be heard on their intended appeal. The right to be heard is not only a cardinal principal of natural justice but also a fundamental right constitutionally guaranteed under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 as amended. For that reason, any decision arrived in contravention of it will not be left to stand, even if the same decision would be reached had the party been heard. The right to be heard was insisted on several decisions of the Court, just to mention a few. The Director of Public v. Sabini Inyasi Tesha & Another National Housing Corporation v. Tanzania shoe Company Limited & Others [1995] T.L.R 251, Mbeya - Rukwa Auto Parts & Transport, v. Jeyeshi Mwakyoma [2003] T.L.R.251, Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002 (unreported) just to mention the few. For instance, in the case of Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy (supra) the Court said: "the right o f a part to be heard before adverse action or decision. Is taken against such a party has been stated and emphasized. By the court in numerous decision . That right is so basic that a Decision which is arrived at in violation o f it will be nullified, even if the same decision would have been reached had the part been heard, because the violation is considered to be a bread of naturaljustice." Acording to the affidavits in support of the application, the sequence of events shows that the applicant was caught in a web of technicalities which among other things led to their earlier appeal to be struck out. The delay falls well within the definition of what amount to a technical delay and the Court should not shut the door, because doing so will cause injustice. Equally so, issuance of the certificate of the delay that was later found to be defective, was within the mandate of the Deputy registrar, neither the applicants nor the respondents had control of the same. Thus, applicants cannot be blamed for negligence. In the circumstances, the application is allowed. The applicants to file Notice of appeal within 30 days from the date of this Ruling. DATED at DODOMA this 17th day of November, 2025. Ruling delivered this 17th day of November, 2025 virtually in the presence of Ms. Stella Thomas Nyakyi, learned counsel for the applicants, Mr. Akram Magoti, learned counsel for the 1s t respondent, and Mr. Iche Mwakila, learned counsel for the 4th respondent, in the absence of the 2n d and 3rd respondents and Ms. Rehema Makakala, the Court Clerk; is hereby certified as a true copy of the original. Z. G. MURUKE JUSTICE OF APPEAL. 9