Edward Mkwelele vs Hussein Bakari Kingungu (Civil Application No. 777/17 of 2023) [2025] TZCA 976 (18 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 777/17 OF 2023 EDWARD MKWELELE................................................ ............ APPLICANT VERSUS HUSSEIN BAKARI KINGUNGU ........... ................................ RESPONDENT (Application from the Judgment and Decree of the High Court of Tanzania (Land Division) at Dar es Salaam) ( Makuru, J.1 ) dated the 26th day of October, 2016 in Land Appeal No. 120 of 2015 RULING 27th August, & 18th September, 2025 MAKUNGU. J.A: The applicant, Edward Mkwelele, by a notice of motion, applies for extension of time within which to lodge a notice of appeal against the decision of the High Court handed down on 26.10.2016 in Land Appeal No. 120 of 2015. The notice of motion has been taken out under the provisions of rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit duly sworn by the applicant. There was no affidavit in reply filed by the respondent. At this stage, I find it apt to narrate a brief factual back ground to the present application. It is this: The applicant won in a suit instituted by the i

respondent against him in the District Land and Housing Tribunal for Kinondoni at Mwananyamala vide Land Application No. 446 of 2005. Dissatisfied, the respondent on 15.10.2015 successfully appealed to the High Court (Land Division) in Land Appeal No. 120 of 2015. On 26.10.2016 the High Court allowed the appeal. After the judgment, the applicant instructed his counsel to appeal, whereas on 4.11.2016, the notice of appeal was filed and documents for appeal purposes were officially requested and served the copy on the respondent. That notice of appeal was struck out on 11.8.2021 upon the application by the respondent on his failure to take some essential steps to institute his appeal. On 1.12.2022 the applicant filed in the High Court (Land Division) Misc. Civil Application No. 773 of 2022 seeking enlargement of time within which to file a fresh notice of appeal against Land Appeal No. 120 of 2015. The High Court (Mhina, J.) dismissed the application on account that no sufficient reasons were shown to warrant the court exercise its discretion to grant the extension sought. Still determined, the applicant lodged the present application on 16.10.2023 to exercise his right of a second bite of the cherry. When the application was called on for hearing on 27.08.2025, the applicant appeared through Mr. Erick Simon, learned counsel whereas Mr.

Robert Kadaso Mageni, learned counsel appeared to represent the respondent. Before the hearing of application could proceed on merit, Mr. Mageni notified the Court that the respondent filed a notice of preliminary objection against the application on two points: one, the application is time barred for having been filed out of time, and two, the application is misconceived hence untenable. Elaborating on his first point, Mr. Mageni contended that as this application is a second bite after the High Court refusal of the first application, in terms of rule 45A (1) of the Rules, the application ought to have been filed within fourteen (14) days from the date of refusal. He pointed out that the ruling for refusal was delivered on 31.07.2023 and this application was filed on 16.10.2023 that means two and a half months after refusal. He submitted that, the law requires that upon delay, the applicant should have applied for the certificate of delay from the Registrar in terms of rule 45A (2) of the Rules and not to account for the delay. Elaborating on his second point, Mr. Mageni submitted that upon delivery of judgment in Land Appeal No. 120 of 2015, the applicant timely filed his notice of appeal on 4.11.2016 and thereafter never took any essential legal steps to institute the appeal as required by law, and hence 3

the respondent filed the notice of motion to strike out that notice of appeal which was granted on 11.08.2021. Therefore, the application has already been overtaken by event. He cited to me the case of Felix Emmanuel Mkongwa v. Andrew Kimwaga, Civil Application No. 249 of 2016 (unreported). He urged the Court to strike out the application with costs. On his part, Mr. Simon strongly opposed the submission made by the respondent's counsel. He briefly replied that, this application was brought under rule 10 of the Rules which provides no time to file an application. What is required under that rule, the applicant is to show good cause in order to be extended time sought, and the good cause was shown in the notice of motion and supporting affidavit. He added that, even rule 45A (1) of the Rules used the word may which is not mandatory instead of the word shall which is mandatory. Therefore the ground has no merit. On the second point, Mr. Simon responded that, the applicant was not aware of the decision that led to striking out the notice of appeal until March, 2022. Upon that, the applicant on 1.12.2022 applied before the High Court for extension of time to lodge a fresh notice of appeal and on 31.07.2023 the High Court dismissed the application. Thereafter, the applicant filed this application to apply for extension of time, he added. In his view, the application has not been overtaken by event. He prayed the preliminary objection to be overruled and the application to proceed on merit. 4

Having gone through the record and considered the arguments advanced for and against the preliminary objection, the issue for my determination is whether the instant application before the Court is time barred. It is on record that, the applicant initially sought an extension of time to file the notice of appeal in Miscellaneous Civil Application No. 773 of 2022, whereas the High Court refused the application on 31.07.2023 upon the failure by the applicant to adduce sufficient cause for the delay. Therefore, the instant application, being a second bite application ought to comply with the provisions of rule 45A (1) of the Rules, which read as follows: "45A (1) where an application for extension o f time to: (a) lodge a notice o f appeal; (b) apply for leave to appeal; or (c) apply for a certificate on a point o f law; is refused by the High Court, the applicant may, within fourteen days o fsuch a decision, apply to the Court for an extension of ti me." From the above, the instant application was supposed to be filed within fourteen (14) days from the date when the ruling by the High Court refusing to extend time was delivered. The record clearly shows that the High Court ruling was delivered on 31.07.2023 whereas this application was 5

filed on 16.10.2023. Counting the period, it took the applicant seventy-seven (77) days to initiate his second bite application, and unfortunately, the applicant failed to obtain a certificate in terms of rule 45A (2) of the Rules. For the foregoing reasons, the application is incompetent for being time barred. Therefore, the first point of objection has merit and alone sufficient to dispose of this application. I have no need to deal with the second point raised by the respondent. It is therefore, the application is hereby struck out with costs. DATED at DODOMA this 17th day of September, 2025 0. 0. MAKUNGU JUSTICE OF APPEAL Ruling delivered this 18th day of September, 2025 in the presence of Mr. Erick Simon, learned counsel for the applicant from Dar es Salaam and Mr. Robert Kadaso Mageni, learned counsel for the respondent from Dar es Salaam and Mr. Magesa Fabiane Mgeta, Court Clerk; both through Virtual Court is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL