Deogratias Anthony Kaphipa & Another vs Aridhi Plan Limited (Civil Application No. 988 of 2024) [2025] TZCA 1014 (2 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 988 OF 2024 DEOGRATIAS ANTHONY KAPHIPA (As Personal Legal Representative of Charles Ilago Kaphipa) ....... ...................1st APPLICANT MATILDA KITWANGA KAPHIPA (As Personal Legal Representative of Charles Ilago Kaphipa) .................. 2N 0 APPLICANT VERSUS ARDHI PLAN LIM ITED ........ . .............................................RESPONDENT (Application for extension of time to serve notice of appeal and a letter requesting copy of the proceedings in the High Court from the decision of the High Court of Tanzania at Mwanza) (Siyani, J) Dated the 27th day of March, 2020 Civit Case No. 24 of 2016 RULING 9th September & 2rd October, 2025 KIHWELO, JA. This is an application for extension of time within which to serve the respondent out of time, both the notice of appeal as weii as the letter requesting copy of the proceedings in the High Court against the decision of the High Court of Tanzania (Siyani, J), dated 27th March, 2020 in Civil Case No. 24 of 2.016. The application is by a

Notice of Motion which has been taken under rules 10 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The same is supported by an affidavit, jointly sworn by the applicants. The application is gallantly being resisted by the counsel for the respondent Mr. Edwin Aron who argued against the application at the hearing while Mr. Erick Katemi, learned counsel for the applicants argued in support of the appeal. Essentially, the applicants have raised mainly two grounds as a basis for the sought extension of time. On one hand, the applicants have associated the delay to the negligence of the applicants former advocate in prosecuting the instant application, while on the other hand, they have curiously raised what to them appears to be a point of illegality and irregularity for the mere reason that the Deputy Registrar is yet to notify them that the documents are ready for collection. By way of background as gleaned from the accompanying affidavit and written submission. The late Charles Ilago Kaphipa happened to be the defendant in Civil Case No. 24 of 2016 in the High Court of Tanzania at Mwanza in which on 27th March, 2020 he was found to have breached the contract entered into with the respondent

and therefore, he was ordered among other things, to pay the respondent the contractual consideration of 35% of the 100% developed plots. Not amused, the late Charles Ilago Kaphipa through the legal services of his lawyers who had conduct of the matter at the High Court initiated appeal processes by timely lodging the notice of appeal on 20th April, 2020 and on 8th April, 2020 wrote a letter requesting for a copy of the proceedings to the High Court. Quite unfortunate the notice of appeal and the letter were not served on the respondent as required by law until when the late Charles Ilago Kaphipa died on 2n d July, 2021. The applicants herein who are personal legal representatives appointed on 31s t July, 2023 are judgment debtors in Application for Execution No. 28 of 2023. The applicants engaged one Mr. Alex Mashamba Balomi who promised to pursue the matter by first of all, lodging an application for enlargement of time to serve on the respondent notice of appeal and the letter but unfortunately, he did not, and efforts to get hold of him proved futile. On 20th September, 2024 the applicants elected to engage Mr. Eric Katemi an advocate based in Mwanza who upon thorough search came to find that there was no application which was lodged by Mr. Balomi learned counsel

for the applicants as he would appear to have promised. It was on that account that Mr. Katemi lodged the instant application. In justifying the prayer for enlargement of time, the applicants sought to convince me that, the deceased's old age, sickness and later death, coupled with negligence of the former advocate warrants the Court granting the orders sought. Mr. Katemi entreated me to grant the extension sought. In response, Mr. Aron highlighted that, although one of the applicants' grounds for seeking enlargement of time is illegality, however, the applicants have been unable to cite any illegality known in law. In his view, the only illegality known in law is time bar, lack of jurisdiction and denial of the right to be heard none of which applies in the circumstances of the instant matter before us. In his considered opinion the allegations that the Deputy Registrar was yet to notify the applicants that records are ready for collection is a new creature and not an illegality known in law which would spare the applicants from the pain of accounting each day of delay as Mr. Katemi would want me to believe. To demonstrate his proposition, he paid homage to the case of Ms. Speed Security Limited v. Hussein Abdailah Kaniki and Another [2024] TZCA 678 TANZLII. He therefore, rounded off

by arguing that the applicants have not accounted each day of the delay which is one year and three days. In further resisting the application, Mr. Aron contended that, the affidavit in support of the application was problematic citing paragraphs 7, 8 and 9 of the affidavit. Arguing, he submitted that, while the applicants averred that they were duly appointed to administer the properties of the deceased on 31s t July, 2023 and letters of administration were granted on 3r d August, 2023, but they also averred that on 5th October, 2021 they reminded the Deputy Registrar to be supplied with copies of the necessary documents for appeal purposes which were supplied to them on 13th October, 2021 which was two years before even their official appointments as legal personal representatives. It is on account of that, the learned counsel submitted that the affidavit was tainted with falsehood. In further faulting the application, the learned counsel argued that, the application was not supported with an affidavit of the said advocate to substantiate the allegations which makes the allegations mere hearsay and not wealth of trust. Reliance was placed in the case of Lilian Richard v. Iddi Hamis [2024] TZCA 549 TANZLII in which the Court stated with sufficiency lucidity that, an affidavit which is

tainted with untruths is not affidavit at all and cannot be relied upon to support an application. He therefore, prayed that, the application be dismissed with costs. In a brief rejoinder, Mr. Katemi reiterated his earlier submission and insistently argued that, there was illegality and that the affidavit does not contain lies. He rounded of by imploring me to grant the prayer and that costs in this application be costs in the course. Addressing the contested application, I feel it is instructive, as a matter of general principle, to reiterate that granting or refusing to grant an application like the one before me, is entirely in the discretion of the Court. It bears reaffirming that, in exercising that discretion the court has to abide by the rules of reason and justice and that the discretion is judicial as such it has to be exercised judiciously. In the case of Mbogo v. Shah [1968] E.A. 93, the defunct Court of Appeal for Eastern Africa stressed that, all relevant factors must be taken into account in deciding how to exercise the discretion to extend time. Fundamentally, the said discretion must aim at avoiding injustice or hardships resulting from accidental inadvertence or excusable mistake or error, but should not be designed at assisting a

person who may have deliberately sought it in order to evade or otherwise to obstruct the cause of justice. I have painstakingly examined the notice of motion, the accompanying affidavit as well as the written submission by the applicants in line with the oral arguments highlighting in support or opposition to the application. Undoubtedly, the instant application is seeking enlargement of time in order to serve the respondent notice of appeal and the letter requesting a copy of the proceedings in the High Court. According to the notice of motion, the accompanying affidavit and the written submission, the application is rooted on two grounds and that is, illegality and the negligence of an advocate. Quite surprising, and for an obscure cause, the applicants are alleging illegality in one matter, that is failure by the Deputy Registrar to notify them that documents are ready for collection. This is quite a novel thing. It bears reaffirming that the position of the law is long settled and clear that, once illegality is pleaded as a ground on which extension of time is pegged the other factors such as accounting for the delay and negligence of a previous counsel have no place as soon as illegality is proved to have existed and the applicant will not take

any pain to prove the rest. There is, in this regard, a considerable body of case law in this jurisdiction. See, for instance, The Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185 in which we stressed that, every applicant who demonstrate that his intended appeal raises points of law should as of right, be granted extension of time if he applies one. However, in that case we emphasized that, such point of law, must be that "of sufficient importance" and that it must also be apparent on the face of the record, such as the question of jurisdiction; not one that would be discovered by a long-drawn argument or process. Without mincing words, the allegations that the applicants were yet to receive any notification from the Deputy Registrar as to the readiness of the documents for collection is not an illegality worth a name. If at all, it is misleading and erroneous and therefore, cannot guarantee the sought extension of time. I will next consider the allegations that the applicants delayed owing to the negligence of the former advocate one Alex Mashamba Balomi. This should not detain me for the simple reason that the position of the law is clear and settled. Time without number we have emphasized that, this is not a Court of sympathy but a Court of law

and an error of an advocate is not a sufficient reason for extension of time. We took similar position in the case of Umoja Garage v. National Bank of Commerce [1997] T.L.R. 109. Unfortunately, in this matter and for an obscure cause, there is no affidavit evidence from neither the former advocate nor the current one to support the applicants' allegations of negligence of the advocate and therefore, it remains a matter of conjecture based on a bare assertion by the applicants, which I am afraid, would not suffice showing good cause. This is the position of the law in this jurisdiction as lucidly stated in the case of Sabena Technics Dar Limited v. Michael 1 . Luwunzu [2021] TZCA 108 TANZLII and others, that it would be a substantial omission if one or more of the individuals mentioned in the affidavit fail to depose to an affidavit to establish an unbroken chain of evidence as proof of a fact. In the case of NBC Ltd v. Superdoll Trailer Manufacturing Company Ltd [2002] TZCA 68 TANZLII we held that; "....an affidavit which mentions another person is hearsay unless that other person swears as well , :" 9

In the final analysis, I decline to exercise my discretion in favour of the applicant, as I hold that the matter at hand discloses no justifiable reasons for the grant of the sought order. Accordingly, I dismiss the application with costs. DATED at DODOMA this 29th day of September, 2025. P. F. KIHWELO JUSTICE OF APPEAL The Ruling delivered this 2n d day of October, 2025 in the presence of Mr. Erick Katemi, learned counsel for the Applicants, Mr. Edwin Aron, learned counsel for the Respondent via Teleconference and Steven Msila, Court Clerk; is hereby certified as a true copy of the original. gj! 1 J. KAMALA PUTY REGISTRAR COURT OF APPEAL 10