Katibu Mtendaji Kamisheni ya Wakfu na Mali ya Amana Zanzibar vs Mwenyekiti Negro Sport Club-Zanzibar (Civil Application No. 789/15 of 2024) [2025] TZCA 1015 (3 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 789/15 OF 2024 KATIBU MTENDAJI KAMISHENI YA WAKFU NA MALI YA AMANA ZANZIBAR [AKISIMAMIWA NA FARHANI HAFIDH SULEIMAN] ....................................................... APPLICANT VERSUS MWENYEKITI NEGRO SPORT CLUB-ZANZIBAR ........... ............. RESPONDENT (Application for extension of time to apply for leave to appeal from the decision of the High Court of Zanzibar at Tunguu) flssa, J.) dated the 20th day of June, 2022 in Civil Appeal No. 32 of 2021 RULING 9th September & 3rd October, 2025 KIHWELO. J.A.: On 8th November, 2024 the applicant filed a Notice of Motion predicated on rules 10,48 (1), (2) and 49 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for the following orders: (1) That this Court be pleased to enlarge tim e to lodge a record o f appeal and memorandum o f appeal to the Court o f Appeal o f Tanzania against the High Court decision in C ivil Appeal No. 32 o f 2021 dated 2 $ h June 2022. i

(2) The Honourable Court m ay be pleased to give such alternative or ju s t orders in the interest o f justice. The application is supported by the affidavit duly sworn by one Emmanuel Samwel an Advocate from Dimoso & Co Advocates, fully instructed to handle the matter. On the basis of paragraphs 4, 5, 6, 7, 8 and 9 of that affidavit, the applicant averred that having dissatisfied with the decision of the High Court it made some attempts before the same court seeking for leave to appeal which unfortunately was not granted and therefore, the applicant was compelled to promptly approach this Court by way of second bite. It occurred that, when the appeal was called on for hearing on 1st June, 2023 the applicant's counsel withdrew it on account of legal technicalities. Later on, Civil Application No. 642/16 of 2023 for enlargement of time within which to lodge the application for leave was filed and whose hearing was fixed on 30th October, 2024 but the applicant was compelled to withdraw it, since leave was no longer a requirement. On that account, the applicant's counsel avers that the time required to lodge an appeal lapsed while the applicant was in court corridors seeking to obtain the required leave. 2

I think, it is momentous that, I should remark in passing that, while the applicant's counsel seeks to challenge the impugned decision in Civil Appeal No. 32 of 2021 on account that the same is tainted with illegalities and irregularities. But quite unfortunate, and for an obscure cause, the grounds stated do not reflect any element of illegality or irregularity but rather they are mere grounds which could befittingly be raised on appeal and not at this juncture. It is on account of the averments above that, Mr. Emanuel Samwel learned counsel who appeared remotely through virtual platform and teamed up with Mr. Richard Madibi also learned counsel invited me to find that since the appellant was honestly and diligently prosecuting the intended application for leave then the delay was not negligence and/or inadvertence. Mr. Samwel cited to me the decision of this Court in Fortunatus Lwanyantika Masha v. William Shija and Another [1997] T.L.R.154 for the proposition that a distinction has to be drawn between cases involving real or actual delay and those involving technical delay. Mr. Samwel impressed upon me that, since the delay to lodge the application was not occasioned by the applicant's negligence or inaction but rather inevitable

judicial process then, this application be granted and costs abide by the results of the intended appeal. The respondent who appeared remotely through Mr. Burhan Juma Burhan the Chairperson of the respondent organization, strongly objected to the granting of the application mainly on the grounds that the applicant was negligent and no sufficient cause has been demonstrated to warrant the granting of the application. In this application, the respondent neither lodged an affidavit in reply nor any written submission opposing the application. It is not insignificant to state that, the position of the law is settled and clear that, where the respondent does not lodge an affidavit in reply despite being served, it is taken that he does not dispute the contents of the applicant's affidavit. See, for instance, Finn Von Wurden Petersen and Another v. Arusha District Council [2020] TZCA 167 TANZLII and Ultimate Security (T) Limited v. Chande Ally Lubugile and Others [2023] TZCA 17332 TANZLII. In Finn Von Wurden Petersen (supra), for instance, the Court relied on its previous decision in Yokobeti Sanga v. Yohana Sanga [2013] TZCA 2176 TANZLII in which the Court held:

"...it is settled that where the respondent does not lodge an affidavit in reply despite being served, it is taken that he does not dispute the contents o f the applicant's affidavit. .... Therefore, the respondent who appears a t the hearing without having lodged an affidavit in reply is precluded from challenging m atters o f fact, but he can challenge the application on m atters o f law ." The issue before me is whether the applicant has demonstrated sufficient cause for extension of time as required under rule 10 of the Rules. This calls for exercise of the Court's discretionary powers which has to be applied judiciously though. In so doing/ the court has to look at the circumstances in each case guided by principles of justice, equity and common sense. As such, it is neither possible nor desirable to lay down and follow any hard and fast rules as there is no-one-size-fits a ll criteria. In the instant application, I have been humbly requested to consider, whether the extension sought was occasioned by real or technical delay. The position of the law is long settled and clear that, a distinction has to be drawn between cases involving real or actual delays and those which involve technical delays. We held this position in the case of Fortunatus Masha 5

cited to me by the counsel for the applicant. The application before me presents similar circumstances in that, the applicant unhappy with the decision of the High Court which rejected the applicant's leave to appeal to this Court on 1st June, 2023 promptly lodged an application for leave to the Court by was of a second bite which was later withdrawn owing to legal technicalities. Thereafter, the applicant lodged Civil Application No. 642/16 of 2023 for enlargement of time within which to lodge the application for leave but once again this application was also withdrawn on 30th October, 2024 since leave was no longer a requirement to appeal to the Court. Then after, on 8th November, 2024 the instant application was filed and this is eight (8) days delay. The power of this Court to grant extension of time to an applicant is obtained in the provision of Rule 10 of the Rules which reads inter alia that. "The Court may, upon good cause shown, extend the tim e lim ited by these Rules or by any decision o f the High Court or tribunal, fo r the doing o f any act authorized o r required by these Rules, whether before or after the expiration o f that tim e and whether before or after doing o f that act and any reference in these Rules to any such tim e sh a ll be 6

construed as a reference to that tim e as so extended." At the outset, I wish to point out that, the law is very settled and clear in this jurisdiction that, in order for an applicant to succeed to prompt the court to exercise its discretion under Rule 10 of the Rules to order an enlargement of time in applications of this nature, he must bring to the fore good cause for the delay. There is a plethora of authorities in this regard but to mention a few, Mumello v. Bank of Tanzania [2006] 1 EA 227 and Kalunga and Company Advocates v. National Bank of Commerce [2006] TLR 235. Although Rule 10 do not go further to define as to what amounts to good cause. However, case law has it that extension of time being a matter within the Court's discretion, cannot be laid by any hard and fast rules but will be determined by reference to all the circumstances of each particular case. There is, in this regard, a long line of authority to that effect, if I may just cite the case of Osward Masatu Mwizarubi v. Tanzania Fish Processing Ltd [2012] TZCA 450 in which this Court stated that: "What constitutes good cause cannot be la id down by any hard and fast rules. The term "good cause" i

is relative one and is dependent upon the party seeking extension o f tim e to provide the relevant m aterial in order to move the court to exercise its discretion . " The immediate issue for my deliberation is whether the applicant in this application has accounted for the period of delay of eight days since in an application for extension of time, the applicant has to account for each and every day of the delay. There is, in this regard, a considerable body of case law to that effect. See, for instance, Bushiri Hassan v. Latifa Lukio Mashayo [2008] TZCA 22.0 TANZLII faced with analogous situation we held that: "Delay o f even a single day has to be accounted fo r otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken . " Corresponding observations were also made in the case of Bariki Israel v. Republic [2012] TZCA 494 TANZLII. Therefore, the applicant has failed to show good cause for the delay which is the precondition for the extension of time as it failed to account for the eight days delay. I am aware that Mr. Samwel sought to take refuge on what he called illegality and irregularity of the impugned decision. However,

apart from stating in the grounds in the notice of motion, the affidavit in support is conspicuously silent on any alleged illegality and irregularity hence the appellant was unable to clearly demonstrate it. To that end, I must conclude that the applicant has not demonstrated any good cause that would entitle it extension of time. In the result, this application fails and is, accordingly dismissed with own costs. DATED at DODOMA this 29th day of September, 2025. Ruling delivered this 3rd day of October, 2025 in the presence of Mr. Emanuel Samweli, learned counsel for the Applicant via teleconference and Mr. Steven Msila, Court Clerk but in the absence of the Respondent; is hereby certified as a true copy of the original. P. F. KIHWELO JUSTICE OF APPEAL