Abdallah Khalid vs Mildred Bennet Lyim & Another (Civil Application No. 1306 of 2024) [2025] TZCA 1104 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PODOMA CIVIL APPLICATION NO. 1306 OF 2024 ABDALLAH KHALID APPLICANT VERSUS MILDRED BENNET LYIM O ... PHARES LAMECK KINYAWA 1st RESPONDENT 2 n d RESPONDENT (Application for extension of time to file an application for stay of execution of the Decree of the High Court of Tanzania, Land Division, at 9th & 15th October, 2025 M AN SO O R , J>A.: The applicant, Abdallah Khalid, moved the Court by a notice of motion dated 19th November, 2024, filed under Rules 4(1), 45A and 48(1) and (2) of the Court of Appeal Rules, 2009 ("the Rules"), seeking for extension of time within which to file an application for stay of execution of the Decree passed by the the High Court (Land Division) at Dar es Salaam on 24th April, 2023,in Land Case No. 59 of 2022. The reasons for delay were explained in the affidavit of the applicant which accompanied the notice of motion. Dar es Salaam) fMweneaoha, J.V dated 24th day of April, 2023 in Land Case No. 59 of 2022 RULING l

The first respondent, Mildred Bennet Lyinrto, opposed the application and filed the reply affidavit sworn by Mr. Jamhuri Johnson, learned advocate who represents the 1st respondent in this application. The second respondent, Phares La meek Kinyawa, did not oppose the motion, hence, he did not file the affidavit in reply. The subject matter in Land Case No. 59 of 2022 is the property described as Plot No. 150 with Title No. 100265, Ada Estate, Kinondoni District, Dar es Salaam "the suit property", registered in the name of the 2n d respondent. The 1st respondent, who is the wife of the 2n d respondent, filed a suit at the High Court, Land Division, for setting aside the sale of the suit property by the 2n d respondent to the applicant through a transaction concluded on 25th November 2021. She contended that the suit property is a matrimonial property and could not be sold without her consent. She succeeded as the sale was declared null and void for lack of spousal consent. Aggrieved, the applicant lodged a notice of appeal on 30th May, 2023, intending to challenge the impugned decision of the High Court. He also applied for copies of proceedings for purposes of filing the appeal before the Court. The notice of appeal as well as the letter requesting for proceedings were timely served onto the respondents.

It is stated in the affidavit of the applicant that while the appeal is pending determination by the Court, on 4th December, 2023, the first respondent filed an application for execution No. 26780 of 2023 at the High Court seeking to execute the decree. The applicant acknowledges that, as it was too late for him to apply for stay of execution, however, he was advised by his advocate to apply for extension of time so that to apply for stay of execution since the impugned judgement, subject of execution before the executing court, contains irregularities, particularly on an issue of jurisdiction of the High Court, Land Division to entertain a dispute on contractual matters. At the hearing, Mr. Seni Songwe Malimi, learned counsel who appeared for the applicant, elaborated his position by referring to section 3 as well as section 37 of the Land Disputes Courts Act, Cap. 216. He stated that, the jurisdiction of the High Court, Land Division is limited to disputes relating to land rights, interests, or incidents. He argued that, the issues of the validity or otherwise of the sale agreement entered to between the parties is purely a contractual issue falling under the jurisdiction of the commercial court or the High Court. To substantiate his stand, he referred to the case of Edna Asheri Nyika vs Tanzania Buildings Agency & 2 Others (Land Case No. 15600 of 2024) [2024] TZHCL and D 824 (30 September 2024), and consolidated Misc, Land Application No. 2074 of 2025 and No. 20018 of 2025 between Edna

Asheri Nyika vs Tanzania Buildings Agency & 2 Others , in which the High Court, Land Division, held that, it had no jurisdiction to entertain disputes on contractual matters. Arguing on whether the applicant has met the pre-requisites for a grant of extension of time as expounded in Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011), Mr. Malimi argued that, the power to grant the extension of time conferred to Court under rule 10 of the Rules is discretionary but has to be exercised judicially. Although he acknowledged that he did not account for each day of delay, he argued however that, there exists an arguable point of law in the impugned judgement, particularly an issue of jurisdiction of the court which passed the judgement. He argues further that an issue of jurisdiction is a point of illegality, worthy the consideration by the Court of Appeal. The Counsel made reference to the case of Eliakim Swai & Another vs Thobias Karawa Shoo (Civil Application No. 2 of 2016) [2017] TZCA 162 (22 February 2017), in which we held that, " where illeg ality appears on the recordextension m ay be granted even if the delay is not fu lly explained." Again, to buttress his stance, he referred to the case of Principal Secretary Ministry of Defence and National Service vs Valambhia

(1992 TLR C.A. 185) [1992] TZCA 91 (3 July 1992), emphasizing that the principle that illegality in a decision constitutes sufficient reason for extension of time, irrespective of the length of delay, as it strikes at the root of the proceedings. Mr. Johnson, opposed the motion stating that the applicant did not meet all the criteria set in Lyamuya (supra), as he did not account for each day of delay, and the delay is inordinate showing lack of diligence. He submitted further that, the only reason grounding the application for extension of time is stated in paragraph seven (7) of the applicant's affidavit, which is the alleged irregularity in the impugned decision of the High Court. Countering the argument by the applicant's counsel, Mr. Johnson refuted the existence of any illegality in the impugned judgement. He argued that the suit entertained by the High Court, Land Division is a land dispute as the issue determined therein is the absence of a spousal consent in the sale of a matrimonial property, the requirement mentioned in the Land Act. The Counsel substantiated his arguments on a decision in Kenya Kazi Security T. Ltd vs Sophia Kalisti Guarehhi (Civil Application No. 572/17 of 2021) [2023] TZCA 17882 (23 November 2023), arguing that, there is no any apparent illegality in the impugned decision and the illegalities pointed out, if any, would have been a proper justification in an application for stay of execution or an extension of time to file the notice of appeal, but not in

an application for extension of time to file an application for stay of execution. When submitting in rejoinder, Mr. Malimi argued that, the reasons for extension of time are the same regardless of the action a party intends to take. He argues that, an issue of illegality in the decisions challenged, has been a ground for extension of time in any application of that nature. He argues further that, in Kazi's case, the extension of time was denied because there was no illegality on the face of the judgement. On an issue of spousal consent, Mr. Malimi argued that a spousal consent is a requirement in the Law of Marriage Act for purposes of protecting the right of a spouse when one party to the marriage intends to sell the matrimonial property without the consent of the other. He contended that, the Court with jurisdiction to determine whether the property is a matrimonial property under the Law of Marriage Act, is not the High Court, Land Division. In the end, while the applicant's counsel urges the Court to allow the application and the costs to follow the events, the 1st respondent's counsel prayed for the dismissal of the application with costs. The counsel for the 2n d respondent, on the other hand, fully supported the submissions by the applicant's counsel;

Having considered the affidavit in support and opposing the motion, the oral submissions of the counsel, the law and the case law referred by the counsel, the issue to be determined is whether the illegality pointed out by the applicant in the impugned decision of the High Court is apparent to enable the granting of the application for extension of time. Firstly, it is undisputed that the power to grant extension of time is discretional upon showing good cause. The Court stated this in Benedict Mumello vs Bank of Tanzania (Civil Appeal No. 12 of 2002) [2006] TZCA 267 (12 October 2006), that: "It is trite law that an application fo r extension o f tim e is entirely in the discretion o f the Court to grant or refuse it, and that extension o f tim e m ay only be granted where it has been sufficiently established that the delay was with sufficient cause , " Again, good cause as expounded in Lyamuya's (supra), amongst others, is to establish that there is an arguable point of law or a prima facie case, such as illegality, sufficient to warrant the extension of time. See also African Banking Corporation Limited vs T-better Holding Company Limited (Civil Application 481 of 2021) [2023] TZCA 188 (31 March 2023), where the Court emphasized that "good cause” must be real and substantial, not merely speculative.

In the instant application, the only reason for delay pleaded and explained by the applicant and his counsel, is the presence of an arguable point of law. It is true as argued by Mr. Mali mi that, where a decision is seen on the face of it to have an apparent illegality, such as an issue of jurisdiction, such an irregularity or illegality, alone may constitute good cause for granting the extension of time, even when the delay is unexplained. The reasons for such principle is explained in Valambhia's, in which we held: "In our view when the point a t issue is one alleging illeg ality o f the decision being challenged, the Court has a duty even if it means extending the tim e for the purpose to ascertain the point and if the alleged illeg ality be established, to take appropriate measures to put the m atter and the record right," See also Eliakim Swai & Another vs Thobias Karawa Shoo (Civil Application No. 2 of 2016) [2017] TZCA 162 (22 February 2017). On the face of the record, an issue of whether the High Court, Land Division can competently determine a suit on whether the property is a matrimonial property, wanting a spousal consent at the time of its disposition requires the determination by the Court. On the face of it, there is an issue of jurisdiction which needs to be ascertained by the Court.

As such, I agree that there is sufficient cause warranting the grant the extension of time. Consequently, based on the above, the application is allowed and the applicant is granted thirty (30) days from the date hereof to file the application for stay of execution in respect of the decree issued in Land Case No. 59 of 2022 by the High Court, Land Division on 24 April 2023. Costs of this application shall follow the events in the intended appeal. DATED at IRINGA this 15th day of October, 2025. Ruling delivered this 15th day of October, 2025 in the presence of Mr. Jamhuri Johnson, learned counsel for the 1st Respondent, Mr. Godfrey Mapunda, learned counsel for the 2n d Respondent, also holding brief for Mr. Seni Songwe Malimi, learned counsel for the Applicant, and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original. L. A. MANSOOR JUSTICE OF APPEAL DEPUTY REGISTRAR COURT OF APPEAL 9