Ally Nuru vs Kudura Haruna (Civil Application No. 49 of 2025) [2025] TZCA 994 (22 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 49 OF 2025 ALLY N U R U ................... .................................... ............................ APPLICANT VERSUS KUDURA HARUNA............... ........................ .............................. RESPONDENT (Application for extension of time to lodge an appeal from the decision of the High Court of Tanzania at Temeke High Court Sub-Registry One Stop Judicial Centre) (Mnvukwa, J.) Dated the 22n d day of July, 2024 in Civil Appeal No. 10672 of 2024 RULING 9th & 22n d September, 2025 KIHWELO. JA.: In this application, the applicant, Ally Nuru is seeking orders for the enlargement of time within which to lodge an appeal against the decision of the High Court of Tanzania at Temeke High Court Sub registry, One Stop Judicial Centre (the High Court) dated 22n d July, 2024 in Civil Appeal No. 10672 of 2024. The notice of motion is predicated on rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit of the applicant. Furthermore, the application is supported by the affidavit sworn by one Ashiru Hussein Lugwisa an i

Advocate of the High Court who at one point rendered legal advice to the applicant in relation to the instant matter. The applicant has raised mainly two grounds as a basis for the sought enlargement of time in that the impugned decision is tainted with serious errors and illegalities and that the applicant was supplied with the requisite documents out of time despite constant follow ups both physically and through a letter. On the other hand, the respondent is gallantly resisting the application. Her main contention is that the applicant neither took essential steps within the time prescribed by law nor did he assign justifiable reasons. By way of background as can be discerned from the accompanying affidavit, the respondent sometimes in 2022 filed a petition for divorce in Matrimonial Cause No. 1422 of 2022 before the Primary Court at Temeke One Stop Judicial Centre which on 9th March, 2023 granted the decree of divorce and further ordered the division of matrimonial properties in which the respondent was awarded 45% of the value of the houses in Bukoba and Chanika each. The respondent was further awarded 45% of the value of the business container at Ferry. Resenting the resultant outcome of the case, the applicant lodged Matrimonial

Appeal No. 59 of 2023 which partly allowed the appeal by setting aside the award of 45% of the value of the houses in Bukoba as well as 45% of the value of the business container at Ferry. The first appellate court further set aside the award of 45% of the value of the house at Chanika and instead awarded the respondent 35% of the value of the house. Not amused by the decision of the first appellate court, the respondent approached the High Court in Civil Appeal No. 10672 of 2024 seeking to fault the decision of the first appellate court. Upon determination, the High Court was satisfied that the appeal had merit partly and therefore, on 22n d July, 2024 it set aside the distribution of the first appellate court in respect of the matrimonial home at Chanika and upheld the decision of the trial court that awarded the respondent 45% leaving the applicant with 55% of the value of that house. The High Court did not disturb the findings of the first appellate court in respect of the remaining properties. It is on account of that background the applicant began processes to initiate an appeal before this Court by lodging the notice of appeal on 16th August 2024 which was duly served on the respondent. Furthermore, the applicant on 19th August 2024 wrote a letter requesting for a copy of the proceedings in the High Court. After that, the applicant made several follow up at the registry through registry officers, at the front desk and then to the court clerk 3

and finally to the typist but unfortunately the proceedings were not ready and was informed to return on 10th December, 2024 which turned out to be a commemoration day of 3rd Anniversary of the Temeke One Stop Judicial Centre as such he had to return on 11th December, 2024 when he was handed over a letter dated 13th September, 2024. In justifying the prayer for enlargement of time, the averments in the affidavit sworn by Ashiru Hussein Lugwisa learned counsel sought to convince me that, the applicant was a victim of circumstances because he had been actively making follow up of his documents but was made to believe that the documents were not ready until when he visited the Deputy Registrar who upon inquiry from the court registry discovered that the documents were ready for collection since 13th September, 2024. It was under those circumstances that the applicant who appeared in person unrepresented through virtual platform entreated me to grant the extension sought. The respondent denied the averments in the supporting affidavits. She refuted each and everything fact which was deponed and stated by the applicant in support of the application. In her view, the applicant was not diligent enough in taking the necessary steps and therefore, the reasons assigned are not justifiable and in the contrary the applicant 4

seeks to delay the court processes and defeat the ends of justice. She therefore, implored me to dismiss the application with costs. In a brief rejoinder, the applicant reiterated his earlier submission and insistently argued that, the applicant has come to Court in quest for justice. 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 whether to grant or refuse an application like the one at hand 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 to exercise the discretion to extend time. These factors include the length of the delay, the reason for the delay, the degree of the prejudice to the defendant if time is extended and the like. 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 5

deliberately sought it in order to evade or otherwise to obstruct the cause of justice. I have examined the notice of motion, the accompanying affidavits as well as the response by the respondent. Undoubtedly, the applicant in the instant application is seeking enlargement of time in order to lodge an appeal out of time. The application in the notice of motion seems to be rooted on two grounds but a cursory perusal of the affidavits in support it is conspicuously clear that, the application is rooted on one sole ground, namely; that the applicant was supplied with the requisite documents out of time despite constant follow ups both physically and through a letter. Quite surprising, and for an obscure cause, the applicant asserts that he made follow ups through a letter but there is no letter which was attached to substantiate his assertion and therefore making this assertion a mere plain statement with no legs to stand. I am very aware that, where the applicant is alleging that he made follow ups in writing then he is duty bound to prove that those letters were actually written, submitted and received by the court. However, in my view, since the applicant did not prove this assertion his averments have no legs to stand. 6

I am also alive to the fact that the applicant in paragraph 12 of his affidavit and the supporting affidavit by the learned counsel who swore it at paragraph 9 both mentioned the unidentified Deputy Registrar who attended the applicant and advised him to lodge an application for extension of time having realized that the said letter was ready since on 13th September, 2024 but was handed over to the applicant on 11th December, 2024. I take note also the fact that the applicant at paragraphs 8, 9, 10 and 11 mentions two Registry Officers one of them named Zuberi, a front desk officer at window No. 5, a court clerk by the name of Hawa and a typist called Hashim Mutomondela who were conversant of his circumstances since they dealt with his matter at one point or the other. Unfortunately, none of the individuals mentioned above deposed an affidavit to prove that fact and therefore, leaving the assertions mere hearsay which cannot be trusted. Time without number, the Court has stated with sufficiency lucidity that, an affidavit which mentions another person is hearsay unless that other person swears as well. See, for instance, Sabena Technics Dar Limited v. Michael J. Luwunzu [2021] TZCA 108 TANZLII and Kighoma Alii Malima v. Abas Yusufu Mwingamno, Civil Application No. 5 of 1987 (unreported). 7

I therefore, find considerable merit in the respondent's argument that the applicant has not shown good cause to warrant the Court exercise its discretion. 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. DATE at DODOMA this 18th day of September, 2025 Ruling delivered this 22n d day of September, 2025 in the presence of the Appellant and Respondent in persons via virtual court and Ms. Jasmin Kazi, Court Clerk, is hereby certified as a true copy of the original P. F. KIHWELO JUSTICE OF APPEAL 8