Miraji Salehe vs Kcb Bank T. Ltd (Civil Application No. 118 of 2018) [2019] TZCA 236 (21 June 2019)

IN THE COURT OF APPEALOF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 118/16 OF 2018 MIRAJI SALEHE APPLICANT VERSUS KCB BANK TANZANIA LIMITED RESPONDENT (Application for extension of time to lodge an appeal from the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam) (Songoro, l.) dated 9 th day of October, 2017 in Commercial Case No. 129 of 2013 RULING 14th & 26th June, 2019 MWANDAMBO, l.A.: The respondent successfully sued the applicant in the High Court, (Commercial Division) at Dar es Salaam in Commercial Case No. 129 of 2013. The judgment of the High Court was delivered on 9 th November, 2015 followed by a notice of appeal lodged one week thereafter, on 16 th November, 2015 to be exact. However, the applicant was late in lodging an appeal to this Court hence the instant application within which to do so. The applicant who is not legally represented, has preferred his application under rule 10 and 48(1) of the Tanzania Court of Appeal Rules, 1

GN No. 368 of 2009 (hence forth to be referred to as the Rules) by way of Notice of Motion to which he has annexed an affidavit stating the reasons behind the delay in lodging an appeal. According to the affidavit, following the lodging of the notice of appeal, the applicant applied for copies of proceedings, judgment and decree to the Deputy Registrar of the High Court and subsequently, on pt February 2018 the said Deputy Registrar, supplied the requisite copies. A certificate of delay was issued accordingly under rule 90(1) of the Rules excluding the days between 25 th November 2017 to 1 st February 2018 for the purposes of computation of the time for lodging an appeal. The affidavit shows further in paras 3, 4, 5 and 6 that after the receipt of the documents, the applicant travelled to a place called Gonja, Same District to attend his sick mother and when he returned to Dar es salaam, he fell sick and had to attend medical treatment at Mnazi Mmoja Hospital and hence the delay in lodging the intended appeal. The respondent who enjoys the services of Mr. Elisa Abel Msuya learned advocate did not file an affidavit in reply pursuant to rule 56 of the Rules. Instead, the respondent filed a notice of preliminary objections predicated on four grounds touching on the competence of the application. However, on reflection and after a short dialogue with the Court, the 2

learned Advocate was man enough to abandon them when the application was called on for hearing and so the same were marked withdrawn paving the way for the determination of the application on merits. As indicated above, the applicant had no legal representation and appeared in person during the hearing. Being a layperson, he had nothing to add to the averments in his affidavit which he adopted wholesale. For his part, Mr. Msuya stood to resist the application. His main contention was that the applicant had not accounted for the delay in lodging his appeal. In elaboration, Mr. Msuya pointed out discrepancies in the averments in the affidavit which were in some respects at variance with the annexures thereto. In particular, the learned Advocate submitted he could not connect the dots in relation to the date on which the applicant's mother fell sick and the date on which he received the requisite documents from the High Court. The learned Advocate also had some reservations on the extent of the applicant's sickness in view of the fact that the supporting medical chit (annexure MR3) is too scanty to support the applicant's illness which could have impacted on his ability to prepare and lodge the appeal within the prescribed period. At the court's prompting, Mr. Msuya was quick to admit that since the application was filed on the 731 st day from 3

the date the applicant obtained copies of proceedings, judgment and decree from the High Court, the delay was not too inordinate considering that the applicant is not legally represented. However, the learned Advocate left the same to the Court's wisdom. Upon examination of the affidavit and annexures thereto, there is no dispute that the applicant took most of the essential steps in the intended appeal within the prescribed time except lodging the appeal. It will be noted that according to the certificate of delay issued on 2 nd February 2018 and going by it, sixty days within which to lodge the memorandum of appeal pursuant to rule 90(1) of the Rules expired on 2 nd April, 2 018. The instant application was filed on 13 th April 2018, eleven days from the expiry of sixty days. Mr. Msuya would have me hold that the applicant has not accounted for the delay because of the unexplained discrepancies in the affidavit in support of the application. Perhaps Mr. Msuya's submission can be correct when the same is subjected to the trite rule which this Court has reiterated repeatedly in a plethora of authorities that an applicant in application for extension of time must not only explain the delay but also account for each day of delay. See for instance: Sebastian Ndaula vs. Grace Rwamafa, CAT (BKB) Civil Application No.4 of 2014, Saidi Ambunda V 4

Tanzania Harbours Authority, Civil Application No. 177 of 2004 and Abood Soap Industries ltd V Soda Arabian Alkali Limited, Civil Application No. 154 of 2008 (all unreported). The delay in lodging an appeal in the instant application started on the 61 st day reckoned form 2 nd February, 2018. That means, whilst accepting the fact that the applicant's averment regarding the period he travelled upcountry to attend to his sick mother is at variance with the averment in relation to the date he paid for the relevant copies per annexure MR1, there is nothing to contradict the applicant regarding his travel to Same to attend to his sick mother. I will accordingly disregard the variance as inconsequential. Regarding the applicant's sickness, there is no dispute from annex MR3 that on 17th March 2018, the applicant attended Mnazi Mmoja hospital with scrotal swelling discharging pus by reason of abscess. The applicant has deponed at para 5 of his affidavit that he underwent some medical procedure to disembowel the boil on such a delicate body organ as scrotum and thereafter was advised to attend at a nearest dispensary for dressing the wound. Unlike Mr. Msuya, I am prepared to accept the applicant's explanation that such an ailment must have contributed to the delay in preparing and lodging the appeal within the 5

prescribed time having regard to the naked fact that the applicant is not legally represented and he had to do the preparations single handedly. Indeed, Mr. Msuya rightly conceded that the length of the delay was not too inordinate to be prejudicial to the respondent. I would, in the circumstances find that the applicant has accounted for the delay warranting the exercise of discretion under Rule 10 of the Rules in his favour. That said, I grant the application and order the applicant to lodge the intended appeal within sixty (60) days from the date of delivery of this ruling. Costs shall be in the cause. Order accordingly. DATED at DAR ES SALAAM this 2pt day of June, 2019. LJ.S. MWANDAMBO JUSTICE OF APEPAL I certify that this is a true copy of the original. A.H. M I DEPUTY REGISTRAR COURT OF APPEAL 6