Ahmed Mohamed Kidege vs Msichoke Peter Lugome (Civil Application No. 634 of 2025) [2025] TZCA 1143 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM. CIVIL APPLICATION NO. 634 OF 2025 AHMED MOHAMED KIDEGE.....................................................APPLICANT VERSUS MSICHOKE PETER LUGOME...................................................RESPONDENT (Application for extension of time for reference of the decision of the Single Justice of the Court) fKitusi. JA.^ dated the 15th day of June, 2023 in Civil Application No. 359/01 of 2022 RULING 8thSeptember & 17th October, 2025 MDEMU. 3.A.: On 15th June, 2023 the Single Justice of Appeal refused to extend time for the applicant to serve the respondent a copy of the notice of appeal and a letter requesting for proceedings. The applicant was aggrieved by the said decision, but did not invite the Court for reference in time in terms of rule 62 (1) of the Tanzania Court of Appeal Rules (the Rules), hence the instant application initiated through the notice of motion and supported by the supporting affidavit and further a supplementary affidavit of the applicant one Ahmed Mohamed Kidege. i Initially, according to the supporting affidavit, the applicant moved the Court for reference in Civil Reference No. 14 of 2023 which was later on struck out by the Court for being filed out of time. The applicant then initiated the instant application on the ground of inaction on the Court's side to supply on the applicant, a copy of the decision which refused to enlarge time to serve on the respondent the notice of appeal and a letter requesting for proceedings. The respondent, on the other hand, through an affidavit in reply, deposed that, as the impugned decision was ready for correction as from 15th June, 2023 and that, Deogratious Mahinyila, advocate for the applicant was aware, then it is unconceived to allege that the applicant was supplied with the said ruling on 28th June, 2023, as such, it may not constitute a ground for enlargement of time. On 8th September, 2025,1 heard the counsel for the parties through virtual court arguing the application. In attendance was Mr. Jeremiah Mtobesya and Mr. Nehemiah Gabo, both learned advocates for the applicant and the respondent respectively. They both stood by the contents of the depositions in the affidavits. Elaborating further on the contents thereof, Mr. Mtobesya sequenced his oral submission in threefold. One is in respect of actual delay in which/ he argued to have acted diligently by filing the application within two days from 26th June, 2023 when the impugned decision was supplied on the applicant to 28th June, 2023 when the application for reference was filed to the Court. The said reference which was registered as Civil Reference No. 14 of 2023, was struck out by the Court on 25th March, 2025 for being filed out of time. Two is in respect of technical delay in which the learned counsel submitted that, the applicant filed the application on-line and he was waiting for the endorsement and further that, the impugned decision was yet to be supplied to him. The two components, to the learned counsel, were out of his control. In that argument, Mr. Mtobesya relied on the case of Voltalia S.A. France v. Next Gen. Splowazi Limited (Civil Application No. 589/69 of 2022) [2024] TZCA 660 (31 July 2024; TanzLII). Three, is in respect of the time the applicant spent in waiting for the documents and the constant engagement with court officials, which, to the learned counsel, are matters beyond the applicant's control. The case of Bank M (T) Limited v. Enock Mwakyusa (Civil Application No. 520 of 2017) [2018] TZCA 291 (25 October 2018; TanzLII) was cited in that behalf. It was his contention basing on the foregoing points that, the applicant has demonstrated sufficient cause, thus urged me to enlarged time within which to apply for reference. Mr. Gabo came for a reply in a total resistance for enlargement of time. Amplifying on the contents of the respondent's affidavit in reply, the learned counsel submitted that, the applicant has failed to annex any document that at one point in time, he requested for the decision subject for reference. That besides, Mr. Gabo's stance was that, the decision was ready on the date of delivery and in presence of advocate Mahinyila who represented the applicant on that date. It was his further argument that, the applicant has failed to account for the days of the delay and also did not attach the decision of the Court which did strike out the first reference. He thus distinguished the cases cited and urged me to dismiss the application for want of merits. Mr. Mtobesya had nothing useful in rejoinder save for reiterating what he submitted in chief in the course of amplifying the contents of the supporting affidavit and the supplementary affidavit thereof. I have taken into account the affidavits of both the applicant and the respondent along with oral submission by the counsel for and against enlargement of time. In terms of rule 62 (1) of the Rules, a person who is aggrieved by the decision of a Single Justice of Appeal may invite the Court for reference within seven days of the decision. As submitted by both counsel, there are many decisions of the Court such that, time may only be enlarged where sufficient cause has been demonstrated by the applicant. It includes accounting for days of the delay, technical delay and or in some instances, grounds on illegalities. Most important in many decisions of the Court is that, enlargement of time is at the court's discretion. In the instant application, looking at the supporting affidavit, the applicant's delay to file reference was caused by failure on the court's side to supply a copy of the decision subject for reference on the applicant. Paragraphs 4 and 5 of the supporting affidavit, in that regard, reads as hereunder: "4, That, aggrieved, I requested to be supplied with a copy o f the decision so as to file reference before a full Court. The said decision was supplied to me on 2&hJune, 2023.... 5 That, I had to wait for the decision after being advised by my counsel that it has been the practice for the decision by a single judge sought to be challenged to be attached to the reference to be filed, for the court to appreciate what is being challenged . " The question before me is whether the foregoing paragraphs constitute sufficient cause for enlargement of time for reference. This question, in my considered view, should have its response from the phraseology of rule 62 (1) of the Rules which permits reference to the Court from the decision of a Single Justice. The rule provides that: "Where anyperson is dissatisfied with the decision o fa Single Justice exercising the powers conferred by Article 123 o f the Constitution , he may apply informally to the Justice at the time when the decision is given or by writing to the Registrar within seven days after the decision o f the Justice." Reading the above rule, besides time limitation to file reference, that is, within seven days of the decision, there is no requirement to annex a copy of the decision of a Single Justice whose decision is subject for reference. This is one, and two is that, an invitation for reference by the Court may be made informally to the Single Justice at the time of delivering the decision. Three, that, where the aggrieved person is desirous to apply for reference in writing, then he may do so by writing to the Registrar. Four, the applicant may apply for reference without advancing any reason in the intended application. As per rule 62 of the Rules, there is no formal prescription in the Rules on how application for reference should be coached. The least I can say is that, by whichever modalities, the rule has been phrased in a simplified manner permitting the aggrieved person to draw attention of the Court regarding his grievances on the decision of the Single Justice of Appeal. There are no formalities at all. Having that in mind, I entirely agree with Mr. Gabo that the applicant's affidavit lacks sufficient material evidence within which I may act upon to enlarged time for reference. Want of the decision of a Single Justice subject for reference, as I stated earlier on, cannot constitute sufficient cause. On that account, the instant application is bound to fail, as I hereby hold, accordingly, it is dismissed with no order as to costs. DATED at DAR ES SALAAM this 16* day of October, 2025. G. J. MDEMU JUSTICE OF APPEAL Ruling delivered this 17th day of October, 2025 in presence of Ms. Neema Mauki, holding brief Mr. Mtobesya, learned counsel for the Applicant and Mr. Nehemia Gabo, learned counsel for the Respondent and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the original. ; ~ ? 7 \ - W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL