Shabani Maganga vs Mathayo Miselya & Others (Civil Appeal No. 274 of 2024) [2025] TZCA 1133 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM; GALEBA, J.A., MGEYEKWA, J.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 274 OF 2024 SHABANI MAGANGA .............................................................. APPELLANT VERSUS MATHAYO MISELYA .......................................................1 st RESPONDENT HAMISI RAMADHANI.....................................................2 nd RESPONDENT MWANTUM BUSHIRI......................................................3 rd RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania at Tabora) (Matuma, J.) dated the 13th day of October, 2023 in Misc. Land Case Application No. 33 of 2023 JUDGMENT OF THE COURT 7th & 15th October, 2025 MGEYEKWA, JA: The appellant, Shabaani Maganga is aggrieved by the decision of the High Court sitting at Tabora in Misc. Land Case Application No. 33 of 2022, delivered on 13th October, 2023. The genesis of the matter originates from a land situated at Kapande Hamlet, Kalunde Ward, within Tabora Region (the suit land). The respondents, Matheo Miselya, Hamisi Ramadhani, and Mwantum Bushiri (being the first, second, and third respondents respectively) instituted a Land Dispute No. 1 of 2015 before the Kalunde Ward Tribunal (the trial Tribunal), against the appellant asserting ownership of the suit land on the basis that they 1

had inherited it from their parents. The respondents prayed, among others, for a declaration that they were the lawful owners of the suit land, eviction of the appellant from the suit land, and restoration of the original boundaries. In response, the appellant resisted the claim, asserting that he had lawfully acquired the suit land in 1982 from the village authorities and had been in uninterrupted possession of it for over thirty years, primarily using it for farming. In support of his defence, he relied on documentary evidence, including letters issued by village officials attesting to his long-term occupation. He denied the respondents' allegations, contending that their parents had resided elsewhere and had never laid claim to the land during their lifetime. Upon hearing the parties and conducting a visit to the locus in quo, in its decision, the trial Tribunal declared the respondents to be the lawful owners of the suit land, ordered the appellant to vacate the suit land, and directed restoration of the original boundaries. Aggrieved by the decision of the trial Tribunal, the appellant lodged an appeal before the District Land and Housing Tribunal (the DLHT) for Tabora in Land Appeal No. 59 of 2017, contending that the trial Tribunal had erred by disregarding his evidence of lawful acquisition and long-standing possession of the suit land. In response, 2

the respondents supported the decision of the trial Tribunal. Upon revisiting the locus in quo, the DLHT re-evaluated the evidence and, concluded that the respondents had no ownership rights to the suit land, resulting in setting aside the decision of the trial Tribunal. The appeal was allowed, and the appellant was declared the lawful owner of the suit land on the strength of his prolonged and uninterrupted possession. Subsequently, at the DLHT, the respondents filed Misc. Land Application No. 28 of 2020, seeking an order to stay the execution of the decree of the trial Tribunal dated 6th December, 2019, the said application was dismissed on 29thSeptember, 2020. On his part, the appellant filed Misc. Land Application No. 31 of 2019 for execution of the judgment of DLHT, alleging non-compliance by the respondents. The application was granted in a ruling delivered on 29th September, 2020, ordering enforcement and compliance with the trial Tribunal's decision. Aggrieved by the decision of the DLTH, the respondent successfully appealed to the High Court. The appellant, being dissatisfied with the High Court's decision, preferred an appeal to the Court. However, in terms of the law, he was first required to apply for a certificate on of a point of law before the High Court. It is on record that the appellant had fallen out of the prescribed time within which to file the said application. Consequently, 3

he sought and was granted an extension of time by the High Court. Pursuant thereto, he filed an application for certification of a point of law. When the matter was called for hearing at the High Court, Matuma, 1 , suo motu, took the position prior to commencement of the hearing that, the application had been filed outside the fourteen days earlier granted by Kadilu, 1 Both parties conceded that the application had been lodged out of time. As a result, the application was dismissed. Aggrieved by that decision, the appellant has now preferred the present appeal, premised on two grounds of complaint, as follows:

1. That, the High Court erred in law and facts when it held that the matter was time-barred, counting from 28h June, 2023 instead o f counting from 4 h day o f July, 2023 when copies of the order granting extension o f time were supplied to the appellant.
2. That, learned Judge of the High Court erred in law and facts when he misdirected himself when he entered a finding that the matter was time-barred and relied on extraneous matters when he held that the matter was filed on 17th July, 2023 instead o f 12th July,

When the appeal was called on for hearing, Mr. Kelvin Kayaga, learned counsel, appeared for the appellant, whereas Mr. Mugaya Kaitila Mtaki, who teamed up with Mr. Akram Magoti, learned counsel, represented the respondents. 4

At the outset, Mr. Kayaga, submitted that the appellant had previously lodged an application before the High Court for extension of time within which to file an application for certification of a point of law. The application was granted by Kadilu, J., who directed that the intended application be filed within fourteen days from the date of the ruling. However, the learned counsel took issue with the decision of Matuma, J, contending that the learned Judge ought to have satisfied himself, upon examination of the record, whether the application was filed within the prescribed period. He argued that had the learned Judge done so, he would have discovered that although the ruling was delivered earlier, the drawn order arising from the application for extension of time was issued on 4th July, 2023. It was his further submission that, time for filing the application ought to have commenced on 4th July, 2023 when the drawn order was issued. While conceding that there is no express legal requirement mandating the attachment of the drawn order in an application for certification on a point of law, Mr. Kayaga maintained that, the said order constituted the only formal proof that extension of time had been granted to file such an application. He further submitted that, under section 19 (2) of the Law of Limitation Act, Cap. 89 (the LLA), the period required to obtain a copy of the order ought to be excluded in 5

computing the limitation period. It was his contention that, since the drawn order was issued on 4th July, 2023 and the application for certification was filed on 17thJuly, 2023, the same was filed within the time, after accounting out for the period required to obtain the order. Upon being inquired by the Court as to whether an application for certification on a point of law falls within the categories of proceedings to which section 19 (2) of the LLA applies, Mr. Kayaga conceded that it is not expressly included. Nevertheless, he urged the Court to take the view that the provision ought to be interpreted purposively, so as to allow exclusion of the period during which the appellant was awaiting copies of the order. To bolster his argument, he cited the decisions in Alex Senkoro & Others v. Eliambuya Lyimo (as Administrator of the Estate of Fredrick Lyimo, Deceased,), Civil Appeal No. 16 of 2017 [2021] TZCA 104 (TanzLII), and Grace C.C. Rubambey v. CMC Automobiles Ltd, Civil Appeal No. 316 of 2020 [2023] TZCA 17378 (TanzLII). In conclusion, he implored the Court to allow the appeal without an order as to costs. In reply, Mr. Magoti strongly resisted the appeal. While conceding that section 19 (2) of the LLA is applicable in matters of limitation, he contended that it had no bearing on the instant case. He submitted that the directive of Kadilu, J., was explicit; the application for certification 6

was to be filed within fourteen days from the date of the ruling, not from the date of the drawn order. He further contended that there is no legal requirement obliging a party to attach a drawn order to an application for certification on a point of law. In his view, the ruling of Kadilu, J alone was sufficient. On the issue of delay, Mr. Magoti submitted that the ruling was delivered on 27th June, 2023. Accordingly, the fourteen-day period expired on 11th July 2023. He added that, as the application was lodged on 17th July, 2023, it was evidently filed seven days out of time. The learned counsel for the respondent stressed that the appellant could not rely on the exclusion under section 19 (2) of the LLA, as the application on certification does not fall within the scope of that provision. In addition, the learned counsel submitted that the issue of delay in obtaining copies of the drawn order was neither raised nor determined before the High Court. Accordingly, he argued that this Court cannot determine a matter which was not canvassed at the lower court. To fortify this position, he relied on the decisions in James Funke Ngwagilo v. Attorney General [2004] T. L. R, Saulo Malimu v. Petro Kingon, Civil Appeal No. 154 of 2022, [2024] TZCA 486 (TanzLII), and Roserita Kingamkono v. Yusuph Nyahori, Civil 7

Appeal No. 122 of 2021 [2025] TZCA 105 (TanzLII), which underscore the settled principle that an appellate court will not entertain issues that were not raised or determined in the court below. In conclusion, he prayed that the appeal be dismissed with costs. In rejoinder, Mr. Kayaga maintained his earlier submissions. We have carefully considered the contending submissions of learned counsel and examined the record of appeal in light of both grounds advanced. The sole issue calling for our determination is whether the application for certification on a point of law was lodged within the time prescribed by the High Court (Kadilu, J.). The background is straightforward. Following a successful application for extension of time, the High Court (Kadilu, J.) granted the appellant fourteen days within which to file an application for certification. The ruling to that effect was delivered on 26th June, 2023. It is not in dispute that the appellant filed the application for certification on 17th July, 2023. By simple arithmetic, the application was lodged six days beyond the fourteen-day period ordered by the High Court. It was, therefore, plainly out of time. The appellant's learned counsel, Mr. Kayaga, has urged us to reckon time from 4th July, 2023, the date on which copies of the drawn order were supplied to the appellant, on the argument that time should 8

begin to run from the date when the order was made available. To support that proposition, he invoked section 19 (2) of the LLA, contending that the period taken to obtain a copy of the drawn order ought to be excluded in computing the delay. With respect, we find this argument untenable. The directive of the High Court (Kadilu, J) was unequivocal, the application for certification was to be filed within fourteen days from the date of the ruling not from the date the drawn order was issued. The appellant was duty-bound to comply strictly with that order or apply for extension of time before taking any step. We find guidance in the decision of this Court in Karori Chogero v. Waitahache Mirengo, Civil Appeal No. 64 of 2024 (unreported), where it was emphatically stated: "Court orders should be respected and complied with. Courts should not condone such failures, to do so, is to set bad precedents and invite chaos, this should not be allowed to occur." In the present matter, as alluded to above, the drawn order of the High Court clearly stated that the fourteen-day period was to run from 26th June 2023, the date of the ruling. Counting from that date, the application ought to have been filed on or before 11th July 2023. 9

The appellant failed to comply with that directive. The resulting delay is therefore unjustified. Even more critically, the appellant's assertion that the delay was occasioned by the time taken to obtain the drawn order was never pleaded in the affidavit in support of the application before the High Court. It was raised for the first time on appeal. As correctly submitted by Mr. Magoti, it is a settled principle of law that courts are bound to determine matters within the confines of the pleadings. A court cannot grant relief that has neither been pleaded nor arising from the grounds set out in the supporting affidavit. See, for instance, The Registered Trustees of Roman Catholic Archdiocese of Dar es Salaam v. Sophia Kamani, Civil Appeal No. 158 of 2015 [2017] TZCA 1007 (TanzLII). We are therefore, in agreement with Mr. Magoti that section 19 (2) of the LLA is inapplicable in the application that was before Matuma, J. In the result, we are satisfied that Misc. Land Application No. 33 of 2020 before Matuma, J, was lodged out of time, in contravention of the order of the High Court (Kadilu, J.). Accordingly, both the first and second grounds of appeal are devoid of merit and are hereby dismissed. 10

All said and done, we find no merit in the appeal, which is accordingly dismissed in its entirety, with costs to the respondents. DATED at TABORA this 14th day of October, 2025. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA 3USTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 15th day of October, 2025 in the presence of Mr. Kelvin Kayaga, learned counsel for appellant, Mr. Akram Magoti, learned counsel for the Respondent and Janekisa Bukuku, Court 11