Twiga Feeds Limited & Another vs National Investment Company Limited (Civil Application No. 1352 of 2024) [2025] TZCA 981 (19 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1352 OF 2024 TWIGA FEEDS LIM ITED ............................................. ............... 1 st APPLICANT ABCON CHEMICAL LIM ITED........................................... ..........2 nd APPLICANT VERSUS NATIONAL INVESTIMENT COMPANY LIMITED . ......................... RESPONDENT (Application for Extension of time to file Review of the Judgement and Decree of the Court of Appeal of Tanzania at Dar es Salaam) fLevira. Galeba and Ismail. JJA^ dated the 15th day of April, 2024 in Civil Appeal No. 295 of 2021 RULING 28^ August & I9 h September, 2025 KAIRO. 3.A.: The applicants have filed this application seeking for an extension of time to file review out of time in respect of the judgment and decree of the Court of Appeal of Tanzania sitting at Dar es Salaam in Civil Appeal No. 295 of 2021 delivered on 15th April, August, 2021. The application is preferred under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit of Mr. Alfred Moshi, a principal officer of the applicants. Briefly, the background of this application as can be discerned from the affidavit in support of the application is that; following unsuccessful i

appeal at the Court in Civil Appeal No. 295 of 2024 delivered on 15th April, 2024, the respondent decided to file execution proceeding Number 17393 at the High Court of Tanzania, Dar es Salaam Registry so as to enforce the decree of the lower court in Land Case No. 29 of 2018 delivered in the respondent's favour. In the said application, the respondent sought to attach and sale the property registered as Plot No. 10 Mbezi Industrial Area with Certificate of Title No. 35515 (property at issue) owned by the 2n d applicant which was charged as a lien so as to recover the sum the 1st applicant owes the respondent. The applicants objected to the attachment and the intended sale, but the Registrar dismissed their objection on 7th October, 2024 and ordered the execution to proceed. According to the applicants, the property at issue is not amenable for execution to satisfy the respondent's decree as the same was relieved from being mortgaged following the respondent's failure to register the same with the Registrar of Companies before taking it to the land registry for mortgaging. Further to that, it was the complaint of the applicants that, there is an illegality in the decision the respondent relied on to attach the said property and which the applicants sought to be reviewed as the applicants were not given a right to be heard on that aspect. The applicants therefore charged that, the grant of the application is necessary so as to correct the

pointed-out flaw. Hence, this application for review which was filed on 29th November, 2024 by the applicants. In her affidavit in reply sworn by Erasto Gaudence Ngamilaga, the respondent denied the presence of any illegality as alleged and that the applicants failed to account for the days of delay. According to the respondent, this application is among the delaying tactics of the applicants after the commencement of execution proceedings. The respondent added that, if at all the applicants were aggrieved with the said decision, they would have filed the application for review within time. At the hearing of the application, the parties were heard virtually from Dar es Salaam whereby the applicants were represented by Mr. Goodchance Raymond Lyimo, learned advocate and Mr. Moshi was also in attendance. The respondent was represented by Mr. Benjamin Mwakagamba, learned advocate. Arguing in support of the application, Mr. Lyimo adopted the notice of motion and the supporting affidavit. In his oral submission, he associated the delay of about five months to file review with the applicant's expectation that, the respondent would have initiated a legal recourse if they still intended to use the property at issue in execution to satisfy the decree. According to him, the institution of the case was a proper cause to take considering that, the property was relieved from

being mortgaged due to procedural irregularity in mortgaging it for the respondent's failure to register the same with the Registrar of Companies first. Besides that, though the registrar dismissed their objection on 7th October, 2024, but they had to wait to be availed with the proceedings and ruling so as to attach them with the application at hand which they filed on 29th November, 2024, about a month later. It was the submission of Mr. Lyimo that, in the circumstances, the applicants' delay was not caused by negligence or inaction and that the applicants have accounted for all the period of delay. That notwithstanding, Mr. Lyimo also invited me to consider the pleaded illegality as a sufficient cause to warrant the grant of an extension of time under rule 10 of the Rules in the circumstances it would be ruled out that, the applicants have failed to account for the days of delay, so as to correct the pointed-out illegality. In his reply, Mr. Mwakagamba started by adopting the respondent's affidavit in reply. It was his submission from the outset that, the applicants have failed to display good cause under rule 10 of the Rules to make the Court exercise its discretion and grant the extension of time sought. He went on to submit that, the provision was expounded in the case Lyamuya Construction Company vs Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application

No. 2 of 2010 (unreported) which spelled out the factors to be considered in such application and according to Mr. Mwakagamba, the factors are cumulative adding that, despite being aware that, granting of an extension of time is within the Court's discretion, but the said discretion has to be exercised judiciously. He went on to submit that, though the order appointing the court broker was given on 7th October, 2024 and application at hand was filed on 29th November, 2024, the applicants deliberately failed to join the court broker as a necessary party rendering the application untenable. On accounting for each day of delay, Mr. Mwakagamba argued that, Mr. Lyimo's submission on this aspect amounts to concession that the applicants delayed for 5 months and failed to account for the said delay. Regarding the submission by Mr. Lyimo that, the days from 7th October, 2024 up to when the application was filed on 29th November, 2024 were used for following-up the documents with the registrar, Mr. Mwakagamba regarded the submission as the statement from the bar since nowhere has it been stated in the applicants7affidavit and beseeched the Court to disregard it. Refuting the presence of any illegality in the decision intended to be reviewed, the learned advocate argued that, the same has not been

demonstrated to warrant the grant of the extension of time sought. He argued that, an illegality or irregularity does not cover the issues of facts and cited the High Court case of Kabula Azaria Ng'ondi & Others vs Maria Francis Zumba & Another, TZHCLandD 611 to back up his argument. Reacting to the applicants' submission that, denial of the right to be heard is the illegality they want to challenge in the intended review, Mr. Mwakagamba argued that, the Court is functus o fficio as it cannot determine its own illegality. He cited the case of Elius Mwakalinga vs Domina Kagaruki and 5 others, [2024] TZCA 1052 TANZLII to bolster his argument. To wind up, he beseeched the Court to find out that, the applicants have failed to exhibit sufficient cause as guided in Lyamuya's case, thus beseeched the Court to dismiss the application with costs. In his rejoinder, Mr. Lyimo submitted to be a misconception the argument by Mr. Mwakagamba that, the guidelines/factors given in Lyamuya Construction Company's case were cumulative. He reiterated that the applicants have accounted for the days of delay, and thus met the threshold required in the grant of an extension of time. On the argument that the Court is functus o fficio , Mr. Lyimo argued that, the argument is misplaced as the Court has powers to review its decision under rule 66 Of the Rules. Besides; he contended, the argument

is premature at this juncture as the proper time to raise it would be during the hearing of the intended application for review. On the argument that, the applicants7have given statement from the bar as the same was not stated in their affidavit, Mr. Lyimo argued that, the submission is well covered as the applicants' notice of motion has clearly stated that, the application will also be supported by other grounds as shall be submitted by the counsel for the applicants during the hearing. Finally, he repeated his prayer to have this application granted with costs. In determining whether or not this application is meritorious, I will start by examining rule 10 of the Rules, which is the enabling provision to move the Court to grant the extension of time. It is also under this rule the application is predicated on. It states as follows: - "The Court may, upon good cause shown extend the tim e lim ited by these Ruies o r by any decision o f the Court o r tribunal, fo r the doing o f any act authorized o r required by these Rules, w hether before o r a fter the doing o f the act, and any reference in these Rules to any such tim e sh a ll be construed as a reference to that tim e as so extended." As to what exactly constitutes "good cause" has been left to the discretion of the Court as essentially, there is no hard and fast rule in 7

establishing it. Nevertheless, the case of Lyamuya Construction Company (supra) has laid down some factors/guides to be considered when determining "good cause". I hasten to add that, I agree with Mr. Lyimo that, the factors are not cumulative as submitted by Mr. Mwakagamba. These are as follow: - "(a) The applicant m ust account fo r a ll the period o f delay, (b) The delay should not be inordinate; (c) The applicant m ust show diligence, and not a apathy, negligence o r sloppiness in the prosecution o f the action that he intends to take; and (d) I f the Court feels that there are other su fficien t reasons, such as the existence o f a p oin t o f law o f su fficien t im portance; such as the ille g a lity o f the decision sought to be challenged." [Also see: Zahara Kitindi and Another vs. Juma Swalehe & Nine Others, [2017] TZCA 1302 TANZLII]. The above stated legal positions will guide the Court in determining this application. There is no dispute that, the decision intended to be reviewed was delivered on 15th April, 2024. Under rule 66 (3) of the rules, an application for review if any, was required to be lodged within 60 days from the date of the judgment to be reviewed which means, by 14th June, 2024. However, the record shows that, it was not until 29th November that the 8

applicants filed this application for an extension of time, a lapse of about 5 V i months since the expiry of the prescribed time. The applicants submitted that, they were waiting for the respondent to institute a suit to sanction the attachment and sale of the property at issue where they would have been heard, instead of filing the execution cause as they did. Sincerely, I failed to comprehend why should the applicants had to wait for the other party to make a move if they really believed that the decision at issue had some irregularity. In my view, the two matters are distinct from each other, as such, the said reason does not hold water and to say the least, the reason does not constitute good cause to warrant the grant of the extension of time sought as the as the applicants seem to suggest. I am further aware that, in between, the applicants raised two preliminary points of objection opposing the respondent's application for execution No. 17393 of 2024. However, the Registrar on 7th October, 2024 dismissed both of them and ordered the execution to proceed. Following the said order, the applicants decided to institute this application on 29th November, 2024 that is after the lapse of 53 days from the decision date. In accounting for the lapse, the applicants stated that, the days were used to follow-up the proceedings and the ruling by the Registrar so as to annex them in this application and preparing for this application. However, 9

to the best of my understanding, there is no legal requirement to attach them in this application. To say the least, I failed to comprehend why the documents were necessary in the circumstance of the application for extension of time which requires an exhibition of sufficient cause. That aside, I join hands with Mr. Mwakagamba that, the reason was just a statement from the bar as the same was not deposed in the applicants' affidavit. I understand that Mr. Lyimo has responded to this issue, but with due respect, I am not purchasing his response. In my opinion, the reason for delay in such applications have to be categorically started in the supporting affidavit and not to be hidden in a blanket statement of "other grounds as sh a ll be subm itted during the hearing" In totality therefore, I am convinced that, the applicants have failed to account for the days of delay. On the ground of illegality, the applicants submitted that, they were not afforded with a right to be heard by this Court sitting on appeal to determine grounds of appeal. Instead, the Court proceed to grant reliefs on matters which applicants were not heard. The ground was vehemently opposed by Mr. Mwakagamba arguing that, the Court is functus o fficio to determine an illegality of its own decision citing the case of Elius Mwakalinga (supra). 10

I have gone through the cited case and observed that, the applicant therein was seeking for an extension of time to restore the appeal which was heard exparte against the applicant so that the Court can re-hear it as opposed to the case at hand wherein the applicants are seeking an extension of time to file review. On this basis therefore, I find the two matters distinguishable. It is a settled law that, illegality of the decision sough to be challenged constitutes sufficient reason for extension of time even where the applicant has failed to account for the days of delay as it happened in the instant case. There is a plethora of authorities in this regard [See: TANESCO vs. Mufungo Leonard Majura and 15 Others, [2017] TZCA 1200 TANZLII and VIP Engineering and Marketing Limited and Two Others vs. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006] (both unreported). In the case of TANESCO (supra) the Court observed as follows: "Notw ithstanding the fa ct that, the applicant in the instant appiication has fa ile d to su fficien tly account fo r the delay in lodging the application , the fact that there is a com plaint o f ille g a lity in the decision intended to be im pugned... suffice to move the Court to grant extension o f tim e so that the alleged ille g a lity can be addressed by the court"

Applying the above legal principle to the facts of the application under consideration, I am convinced that the application has merit based on the ground of illegality and I accordingly grant it. For avoidance of doubt, the review is to be filed within sixty (60) days from the date of this ruling. Costs to be in the cause. It is so ordered. D ATED at D O D O M A this 16th day of September, 2025. L. G. KAIRO JUSTICE OF APPEAL Ruling delivered this 19th day of September, 2025 in the presence of Mr. Goodchance Raymond Lymo, learned counsel for the applicants, Mr. Grey Dedan, learned counsel holding brief for Mr. Benjamin Mwakagamba, learned counsel for the respondent, and Mr. Leopord Mabugo, Court Clerk via Virtual Court; is hereby certified as true copy of the original. 12