Juma Rashid vs Neema Sylivester (Misc. Civil Application No. 118 of 2017) [2018] TZCA 970 (14 December 2018)

I .• I l IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF ARUSHA) AT ARUSHA. MISC. CIVIL APPLICATION NO. 118 OF 2017 {C/F MONDULI DISTRICT COURT, CIVIL APPEAL NO 1 OF 2017, ORIGINAL ! MTO WA MBU PRIMARY COURT MATRIMONI~L CAUSE NO 2 OF 2017} JUMA RASHID ............................... ... APPLICANT VERSUS NEEMA SYLIVESTER . ., ....................... RESPONDENT DATEOFLASTORDER: -22/11/2018 DATE.OF RULING: - 14/12/2018 MZUNA, J.: RULING The above mentioned applicant has filed this application for extension of i I time to file appeal out of time. The application has been preferred under Section 14 of the Law of Limitation Act, Cap 89 RE 2002 and was heard ex parte and there is an affidavit in support thereof. , 1

The main issue is whether there is suffi<i:ient cause shown for the ! delay? Arguing in support of the application, Mr. Maliki, the learned counsel submitted that the applicant was issued with a divorce order with his wife, ! the respondent herein at the Primary court. The applicant's appeal to the I I District Court was dismissed on 27/7/2017. He was dissatisfied and therefore intends to file appeal. That he failed to file it on time for reasons which are stated in I Paragraph 8 of the affidavit where it is shown that he was suffering from H.B Pressure and road accident and the financial constraint. That he was given I one-month bed rest 29 th July 2017 -27 th August 2017. He attended medical ' treatment at Kirurumo Health Centre for treatment of BP and road accident. The medical chit was admitted as exhibit_P.I That due to the above reasons, the appeal was not filed within the prescribed 45 days from the date of judgment under S.80(2) of the Law of Marriage Act, Cap 29 RE 2002. That, the 45 days\ lapsed on 9 th September 2017. However, the application was still very weak as he could not travel I from Monduli to Arusha to seek legal services. That on 4 th October 2017 he 2

traveled and went to Arusha for the purpose and managed to contact them I and then filed this application on 13 th October 2017 which was after about lmonth and three days or so. The learned counsel argues that there is sufficient cause for the I applicant's failure to file the appeal within tinJe based on the sickness reasons. He made reference to the case of Yusufu Same and Another vs I Hadija Yusufu, Civil Appeal No. 1 of 2002 (CAT} unreported. i He prayed for this application to be granted so as to file this appeal for i ' the ends of justice. This court has keenly followed the subr1llission from the learned I counsel. The advanced reason for the delay is sickness as the applicant was I admitted in hospital as evidenced by the medical chit Exhibit Pl. I would I agree with that ground not for financial constraint. I I am satisfied in view of what was held in the case of Yusufu Same I and Another vs Hadija Yusufu, supra at page 7 where it was held that I though the powers are discretionary it must be exercised judicially. There I must be "sufficient cause which has been defined ''to include lack of diligence on the part of the applicant". I find none in the in 1 stant case. I 3

I I \ The application to file appeal out of time is granted. The same be filed within 14 days from today. No order as to costs. M. G. MZUNA, JUDGE. I L--t. \ \ ,,1 ?fi/'6 4