Abdul Ali Faraji vs Asha Selemani Mhina (Civil Application No. 1444 of 2024) [2025] TZCA 982 (19 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1444 OF 2024 ABDUL ALI FARAJI ...................................... .................................. APPLICANT VERSUS ASHA SELEMANI MHINA ............ ................ ....................... RESPONDENT (Application for extension of time to serve a notice of appeal against the decision of the High Court of Tanzania at Dar es Salaam) (Bwiqpqe, 3.) dated the 28th day of June, 2023 in Matrimonial Cause No. 01 of 2020 RULING 27th August & 19th Sept, 2025 MKUYE, J.A.: This is an application of extension of time to serve a notice of appeal against the decision of the High Court of Tanzania, Dar es Salaam District Registry at Dar es Salaam (Bwigoge, J.) in Matrimonial Cause No. 01 of 2020 dated 28/6/2023; to file a letter for application of copy of proceedings from the Registrar and to serve the same to the respondent. The application is by way of a notice of motion predicated under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and it is supported by an affidavit deponed by the applicant. i

The brief facts of the matter as can be discerned from the affidavit are that: The applicant and respondent were couples who were married under Islamic rites on 1/9/1992. They were blessed with one child. Their marriage was peaceful until 2017 when dispute arose over allegations of the respondent's extra marital affair of which she denied. Sometimes in 2018, the respondent left the matrimonial home claiming she was forced out. Reconciliation efforts held by BAKWATA (National Muslim Council of Tanzania) failed, leading to the issuance of talak and referral of the matter to the court. Thereafter, the respondent commenced matrimonial proceedings against the applicant seeking for a divorce and distribution of matrimonial properties. Upon hearing both parties, the High Court granted divorce and ordered for a distribution of matrimonial assets. The applicant was not satisfied with that decision. However, he was not able to challenge it by way of an appeal as he was late to file it. This is the essence of the instant application on the ground of illegality in the decision sought to be impugned. When the application was called on for hearing, Mr. Samson Mbamba, learned advocate appeared representing the applicant while Mr. Rajabu Mrindoko, learned advocate appeared through a link of Video conference from Dar es Salaam representing the respondent. 2

After having sought to adopt the notice of motion, supporting affidavit and his written submission in support of the application, Mr. Mbamba tried to substantiate why the applicant was late to serve the notice of appeal and lodge a letter requesting for the copy of proceedings in that the advocate whom he had engaged to do so fell sick and eventually passed on while leaving the notice of appeal not served and a letter requesting for copy of proceedings not lodged. He contended that the applicant did not have access to know the status of his appeal, more so, when taking into account that he had also a problem of loss of memory occasionally. Mr. Mbamba also argued that there was an illegality in the matter sought to be impugned. He elaborated that, in the matter at hand the parties professed Islamic religion or rather their marriage was celebrated under Islamic rites. As such, in terms of the provisions of section 18 (1) of the Magistrate's Courts Act, Cap 6, the court of competent jurisdiction is the primary court and not the High Court. He insisted that, this case was heard and determined by the High Court which had no jurisdiction to entertain it as it ought to have been heard by the primary court. He referred me to the case of Tanzania Revenue Authority v. Kotra Company Ltd, [2009] TZCA 191 in which the Court observed that where the court of competent jurisdiction

is required to deal with a matter, such matter should not be heard by another court. It was further argued by Mr. Mbamba that, it is a requirement of the law that all marriage disputes have to pass through the Marriage Conciliation Board but this matter did not pass there. Instead, he said, the matter passed through BAKWATA which declared the marriage broken down and issued a talak dissolving the marriage under Islamic law while BAKWATA is not a Conciliation Board as per section 103 (1) of the Law of Marriage Act, Cap. 89. In support of his contention, he sought refuge from the case of Jackline Hamson Ghikes v. Mlatie Richie Assey, [2024] TZCA 438 TANZLII in which the certificate issued by the Welfare Officer who was not a Conciliatory Board was found by the Court to be not and the proceedings and decisions of the lower courts were nullified for such reason. Being guided by the above cited case, Mr. Mbamba argued that as the certificate in this case was issued by BAKWATA to the extent of issuing a Talak, then the proceedings and decision of the High Court are a nullity ought to be nullified. Based on this argument he urged the Court to grant the application sought. 4

With regard to the prayer for extension of time to file a letter requesting for copy of proceedings, he relied on the case of Tanzania Port Authority and Zanzibar Telecommunication Limited v. The Commissioner General (TRA), [2022] TZCA 373. On his part, Mr. Mrindoko on set, declared his stance that he was contesting the application. After having sought to adopt his affidavit in reply he argued that, in the application of this nature under rule 10 of the Rules, the applicant is required to show good cause. He added that, factors to be considered among others are, one, the applicant to account for each day for delay; and two, to show diligence in conducting the matter. Mr. Mrindoko argued that under rule 84 (1) of the Rules, the applicant is required to serve the notice of appeal on the respondent within 14 days from the date of its filing. Also, rule 90 (3) of the Rules requires the letter requesting for documents to be served on the respondent within 30 days from the date of filing. He said, as the notice of appeal was lodged on 6/7/2023, it ought to have been served by 21/7/2023 and the letter requesting for documents ought to have been lodged within 30 days from 28/6/2023 when the judgment was handed down which was by 28/7/2023. 5

He argued that, by filing this application on 10/12/2024 from when the notice of appeal was filed it means almost 17 months had lapsed. Also, from 28/7/2023 when the letter ought to have been lodged to when this application was filed it is almost after 17 months had expired. Mr. Mrindoko argued that the reason as shown in paragraph 4 of the supporting affidavit that the delay was due to the advocate's sickness and passing on or that the applicant being 80 years old and having a problem of loss of memory thus failing to follow up the status of the case until he engaged another advocate, is not a good cause within the ambit of rule 10 of the Rules. He said, this is so because the applicant failed to account for the delay of about 17 months. Apart from that he argued that, it was not shown when Advocate Madega started falling sick and for how long as there is no medical sheet to that effect. Moreover, he argued, it was not shown when he passed away as no death certificate is attached and even that the applicant is over 80 years old and has a problem of loss of memory is not supported by evidence. Mr. Mrindoko argued further that, the applicant has concealed some information relating to the application for execution and proceedings thereof where the applicant was represented by Mr. Faraji Ahmed and, hence, he was aware of the death of Advocate Madega thus

he engaged another advocate. Besides that, as shown at page 3 of the Execution Application on 14/7/2024 the applicant sent one Ally Abdul (his son) to appear in court. In his view, this application was brought after having been served with a notice of execution by an auctioneer, the information that was concealed by Advocate Mbamba in his letter for perusal of the High Court decision. On the issue of illegality that the High Court had no jurisdiction, it was Mr. Mrindoko's argument that it has jurisdiction under section 76 of the LMA to entertain matrimonial matters as it vests power to the primary court and resident magistrate's court and that it does not require parties professing a certain religion to go to primary court. To him, the issue of illegality raised involves a long process to ascertain it. As regards the certificate from a Marriage Conciliatory Board (Exh. P3) being invalid, he argued that it also required a long-drawn process of looking at the judgment. Mr. Mrindoko, stressed that, since the application has been brought inordinately late without any explanation for the delay of 17 months, the illegality raised cannot be relied upon. He cited to me three cases in support of his argument which are Bushiri Hassan v. Latifa Lukio

Mashayo [2008] TZCA 220; Ndorosi Saitoi v. Veredian John, [2024] TZCA 1080 and Masato Manyama v. Lushamba Village Council [2025] TZCA 34 (all TANZLII). On the issue of illegality, he relied on the cases of Mtengeti Mohamed v. Mlandina Macha [2023] TZCA 17328 TANZLII. Lastly, he prayed to Court to find that the application is not merited and dismiss it with costs. In rejoinder, Mr. Mbamba argued that the issue of certificate is very crucial to establish the jurisdiction of the Court and, therefore, does not involve a long process to establish it. He said, it is a legal issue. He argued that, much as section 76 of the LMA deals with concurrent jurisdiction of primary courts, resident magistrates court and the High Court, it must be read subject to section 18 (1) of the MCA which provides that where Islamic or Customary law applies then the primary court is the one with jurisdiction. On the issue of accounting for the delay, he insisted that the applicant was not aware of the execution proceedings but he became aware after perusal that was made by him. He denied that the applicant had engaged Advocate Faraji to represent him in Execution proceedings and therefore time started to run after having engaged Mr. Mbamba. As

regards the absence of medical sheet to show the applicant's condition and death certificate of Advocate Madega, Mr. Mbamba argued that it was difficult to secure them though I must state that this just came from the bar. To insist that the issue of illegality suffices to be a good cause for the grant of the application, he referred me to the cases of Mariam Nyangasa v. Shabani Ally Sembe, Civil Application No. 139/12 of 2017; Ezrom Magesa Maryogo v. Kassim Mohamed and Another, [2016 TZCA 830 TANZLII and Tanzania National Parks (TANAPA) v. Joseph K. Magombi, [2017] TZCA 1220. He prayed for the application to be granted. Rule 10 of the Rules gives the Court discretion to extend time within which to do something upon the applicant showing good cause which will persuade the Court to exercise its discretion - (See: Mariam Nyangasa (supra)). It is important to note that such discretion must be exercised judicially. See: Lalji Gangji v. Nathoo Vassangee [1960] 1 EA 315 and Noormohamed Abdulla v. Ranchodbhai J. Patel & Another [1962] 1 EA447. As to what constitutes good cause, is yet to be defined but the Court has to consider factors such as, the length of delay involved; the 9

reasons for the delay; the degree of prejudice if any, that each party stands to suffer depending on how the Court exercises its discretion; the conduct of the parties; and the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal. [See: Attorney General v. Tanzania Ports Authority & Another [2016] TZCA 897 TANZLII]. According to paragraph 5 of the supporting affidavit and the submission by Mr. Mbamba, the reason for the delay to serve the notice of appeal and to lodge the letter requesting for proceedings was due to the sickness of the applicant's former advocate one, Iman Omar Madega who subsequently passed away. This led to the applicant to lose track of his case coupled with old age nearing 80 years of the applicant with occasional memory loss. According to the applicant, it was until when Advocate Samson Mbamba was engaged who upon the perusal of court file observed that the notice of appeal was not served on the respondent and no application for copies of proceedings was made and served upon the respondent. Advocate Mbamba swore an affidavit in support averring that he was engaged on 21/11/2024 and upon perusal to the court file, he 10

realised that the notice of appeal was not served upon the respondent and that advocate Madega had not applied for proceedings. It is true that the notice of appeal was lodged on 5/7/2023 after the decision sought to be challenged was delivered on 28/6/2023. Rule 84 (1) of the Rules requires a notice of appeal to be served within 14 days after its lodgement. Thus, ordinarily, it ought to have been served on or before 19/7/2023 but that did not happen. According to the applicant it was until 21/11/2024 when he discovered that the notice was not served on the respondent and that advocate Madega had not applied for copies of proceedings. This was a lapse of about 476 days from the date when the notice of appeal was lodged. It is unfortunate, as Mr. Mrindoko rightly argued that, the applicant, neither in his affidavit in support of the application nor in the oral submission by Mr. Mbamba has advanced evidence as to when the late advocate Madega fell sick nor the date of his demise. There is no medical sheet or death certificate which were produced to substantiate such contention. Apart from that, the assertion that the applicant lost track of his case due to his old age of about 80 years with occasional memory loss is also not supported by evidence for lack of birth certificate to prove his age and medical chit to show how he occasionally experienced memory li

loss annexed to the affidavit. The importance of making a follow up over a case where a party has engaged an advocate was emphasized in the case of Lim Han Yung and Another v. Lucy Treaseas Kristensel [2019] TZCA 400 TANZLII where the Court stated that: "We think that a party to a case who engages the services o f an advocate, has a duty to ctoseiy foiiow up the progress and status o f his case . A party who dumps his case to an advocate and does not make any follow ups o f his case, cannot be heard com piaining that he did not know and was not inform ed by his advocate the progress and status o f his case." In paragraph 8 of the affidavit, the applicant has deponed that the period between 25/11/2024 to the date of filing the application at hand, was used for the preparation of this application. This is a period of approximately 14 days. However, he did not account for a period 21/11/2024 to 24/11/2024 after being notified of the status of his appeal. Those 3 days were not explained. But again, it seems to me that the applicant concealed some information as was averred inthe respondent's affidavit andsubmitted in court by Mr. Mrindoko. The execution proceedings attached by the respondent bears out that there was an Execution Application No. 12

000013274 of 2024 which was lodged before the High Court on 3/6/2024. The proceedings thereof dated 4/7/2024 shows that one Ally Abdul (child of the respondent) appeared in Court. Not only that, on 22/7/2024 when the matter was called on for mention, Advocate Faraji Ahmed appeared for the respondent (the applicant herein). On that date, Advocate Faraji Ahmed indicated to the Court that he was engaged last week and prayed for time so that he could peruse the case file of the original case and the court granted him 14 days from that day to peruse the case file though the record does not show what happened thereafter. Therefore, I agree with Mr. Mrindoko that, it is not true that the applicant was not aware with the status of the case until when he engaged Mr. Mbamba who perused the file in November 2024. He was aware even before way back in June 2024. It is settled law that in an application of this nature the applicant has to account for each day of delay - See: Bushiri Hassan (supra) and Masato Manyama (supra) and Ndorosi Siatoi (supra). In this case, guided by the above authorities, I find that the applicant has failed to account for each day of delay. The other ground relied upon by the applicant is the illegality based on lack of jurisdiction of the High Court to entertain the matter 13

and the proceedings of the matter being proceeded with invalid certificate from the Marriage Conciliatory Board. I am aware that, it is settled law that a ground of illegality can constitute a good cause for extension of time. In the celebrated case of Principal Secretary, Ministry of Defence and National Service v. Dev ram P. Valambhia (1992) T.L.R. 185, the Court stated that: "In our view, when the point at issue is one alleging illeg ality on the decision being challenged, the Court has a duty even if it means extending the time for purpose to a ascertaining the point and if the alleged illeg ality be established to take appropriate m easures to put the m atter and the record rig h t" See also: Ezron Magesa Manyogo (supra) Lyamuya Construction Company Limited v. Board of Trustees of Young Women ChristianAssociation of Tanzania, [2011] TZCA 4 and Arunaben Chaggan Mistry v. Naushad Mohamed Hussen and Others, [2016] TZCA 511 (both TANZLII). Also, it is a requirement of law that the illegality must be apparent on the face of the challenged decision. This stance was emphasized in the case of Geita Gold Mining Limited v. The Commissioner

General, Tanzania Revenue Authority, [2025] TZCA 858 [TANZLII] where it was stated that: "Another point is that o f illegality. For this ground to succeed, it has to pass the test, the obvious one being that the point m ust be that which can be spotted easily by a person who runs and reads " Other factors which need to be looked into when considering the issue of illegality vis a vis an application for enlargement to do something are that one, the alleged illegalities are material irregularities that is, they do not refer to the decision arrived at but to the manner in which it is reached. Therefore, the applicant has to show that the Court acted illegally for want of jurisdiction or for denial of right to be heard or that the matter was time barred. Moreover, it has to be shown that the point of illegality is of sufficient importance. I have taken note of Mrindoko's argument that the issue of illegality cannot stand in this matter based on the case of Mtengeti Mohamed (supra). However, I think, that case is distinguishable to this case because the alleged illegality based on applicant's failure to file written submission in support of appeal within time and the delay to take action was inordinately late.

In the matter at hand, in para 6 of the affidavit supporting the notice of motion, the applicant has averred that the decision intended to be challenged on appeal is tainted with illegality as the High Court had no jurisdiction to entertain the matter involving parties who professed Islamic faith. Moreover, that it erred in distributing the matrimonial assets and that the proceedings were invalid for want of certificate from the Marriage Conciliation Board. As alluded to above, in order for the ground of this nature to warrant the grant of extension of time, the alleged illegality must be apparent on the face of the record which need not to be established through a long-drawn argument and process: See also Lyamuya Construction Company Limited (supra). Having considered the points advanced by the applicant, I am of considered view that, the grounds concerning the issue of the court of competent jurisdiction and lack of valid certificate from the Marriage Conciliatory Board which touch on the jurisdiction qualify as a points of illegalities as they are provided for under the law. Otherwise, the other ground relating to the distribution of matrimonial assets, in my view, does not qualify as it will require a long-drawn argument and process. Basing on the issue of illegality, I find merit on the application and I grant it. Consequently, I order that the applicant is to serve the notice 16

of appeal on the respondent within fourteen days from the date of this Ruling. He is also to lodge, a letter requesting for copies of proceedings within fourteen days from the date of this Ruling and serve the copy thereof on the respondent within thirty days from the date of this Ruling. It is so ordered. DATED at DODOMA this 19th day of September, 2025. The Ruling delivered virtually this 19th day of September, 2025 in the presence of Mr. Rajabu Mrindoko, learned Counsel for the Respondent and also holding brief for Mr. Samson Mbamba, learned Counsel for the Applicant and Mr. Ladislaus Msuba, Court Clerck, is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL T $ -- D. R.IYIMO )! DEPUTY REGISTRAR ISII COURT OF APPEAL 17