National Furnishers Limited vs Exim Bank Tanzania Limited (Civil Application No. 782/17 of 2024) [2025] TZCA 968 (15 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 782/X7 OF 2024 NATIONAL FURNISHERS LIM ITED ...................................................APPLICANT VERSUS EXIM BANK TANZANIA LIM ITED .............................................. RESPONDENT (Arising from the Decision And Order of the High Court of Tanzania, Land Division at Dar es Salaam) (Kaaomba, J.^ dated the 29th day June, 2021 in Misc. Land Application No. 693 of 2020 RULING 25th August & 15th September, 2025 MWANDAMBO. J.A.: Rule 90(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) prescribes 60 days' period for an appellant to institute an appeal reckoned from the date he lodged his notice of appeal. However, the proviso to rule 90 (1) exempts the appellant from instituting within the prescribed period where the Registrar of the High Court issues a certificate of delay excluding such days used for the preparation and supply of certified copies of proceedings, judgment and decree to the appellant subject to such appellant having made a written request to the Registrar for that purpose i

within 30 days from the delivery of the impugned decision and served a copy on the respondent. The applicant lost to the respondent in Misc. Land Application No. 693 of 2020 of 2020 delivered on 29 June 2021 from which she lodged a notice of appeal simultaneous with a written application to the Registrar, High Court for the supply of requisite copies for the purpose of the appeal. However, the notice of appeal was struck out by the Court on 24 November 2024 for failure to take an essential step in the appeal. Although it is not entirely clear from the papers before me, it would appear that the appellant initiated some steps to appeal which entails seeking extension of time before the High Court for lodging the notice of appeal. Since the earlier application for the supply of the certified copies of proceedings, judgment and decree went with the striking out of the earlier notice, it became necessary for the applicant to seek extension of time before the Court for doing so through the instant application made under rule 10 of the Rules. The affidavit of Bijal N. Ramji Managing Director of the applicant supports the application citing three main reasons for the delay to include; that the applicant had earlier on lodged a notice of appeal which was, nonetheless, struck out; two, the ruling striking out the notice of appeal

was made in the absence of the applicant's advocates who were not served with notice and immediately after becoming aware of the ruling, the applicant lodged an application before the court and that, there is an illegality in the impugned ruling. Apparently, the respondent filed no affidavit in reply. Mr. Tazan Kenneth Mwaiteleke, learned advocate for the applicant and Ms. Faiza Salah, also learned advocate representing the respondent appeared for the hearing of the application through a video link and addressed me on their respective stand points for and in opposition. Since the respondent had not lodged her affidavit in reply, her advocate's submissions were limited to points of law. One of the issues which Ms. Salah raised, relates to the efficacy of the application. On this, Ms. Salah argued that, in terms of rule 90 (1) of the Rules, the time for instituting an appeal is 60 days from the date of lodging a notice of appeal, the applicant did not require any extension of time to apply for copies of proceedings, ruling and drawn order. This is so, she argued, in the first place, there is no indication that the applicant has applied for extension of time to lodge a notice of appeal. Secondly, there is nothing preventing the Registrar of the High Court from supplying the documents to the appellant now upon requesting him awaiting extension of time to lodge the notice of appeal. 3

To the above, Mr. Mwaiteleke argued, and correctly so in my view, that the power to extend time within which to comply with the proviso to rule 90 (1) of the Rules is vested in the Court and not the High Court. While appreciating the argument on the time limit within which to institute the appeal, counsel argued that, that notwithstanding, there is no assurance that the Registrar will act with dispatch in availing the requisite copies for appeal purposes before the expiry of 60 days for institution of the appeal. According to the learned advocate, it will be risking too much sitting by in the hope that the Registrar will act promptly and supply the requisite copies within time necessary for the institution of the appeal. I have considered the rival arguments on this issue and I think it should not detain me more than necessary. There is no gainsaying that, once a notice of appeal is struck out, everything associated with it goes inclusive of the letter to the Registrar in pursuance of rule 90 (1) of the Rules, in line with the Court's decisions in Haruna Mpangaos& Others v. Tanzania Portland cement Company Limited, Civil Application No. 98 of 2008, Azaram Dadi v. Abilah Mohamed Babu, Civil Appeal No. 74 of 2016 (both unreported) cited in A Caste Corporation v. The Board of Trustees of the Public service social Security Fund [ 2022 TZCA 540. There is no dispute, as submitted by the applicant's learned advocate that, Rule 10 of the Rules vests power in the Court to extend

time for doing an act permitted or authorised by the Rules which includes a letter to the Registrar of the High Court under the proviso to rule 90 (1) of the Rules to be done within 30 days of the impugned decision. Since the previous application which was made within the prescribed 30 days disappeared with the order striking out the previous notice of appeal, the applicant applied for extension of time within which to do so. In my view, while one may be tempted to go along with Ms. Salah on her concerns, that does not amount to saying that the application is untenable. I would thus reject that argument and proceed to determine the application on merit. On the reason for the delay, Mr. Mwaiteleke argued that, the unopposed affidavit of Bijal N. Ramji has established that the applicant had no notice of the delivery of the ruling striking out the earlier notice of appeal and became aware in on 5 September 2024 and, immediately thereafter, it filed the instant application. Counsel urged that delivery of the ruling in the absence of the appellant without any notice of such ruling constitutes a valid reason for the delay. Secondly, counsel impressed upon me to accept that the applicant has acted promptly in lodging the application for extension of time and thus the Court ought to exercise its discretion in his favour. Despite conceding the technical delay, Ms. Salah was steadfast that, the applicant has failed to disclose a valid reason for

the delay nor has it accounted for such delay to warrant the Court's exercise of its discretion. According to the learned advocate, the argument that the applicant's advocate had no notice of the delivery of the ruling is baseless in view of the fact that the ruling striking out the notice of appeal shows that it was delivered in the presence of Ms. Irene Mchau who also held the brief of Mr. Mwaiteleke, learned advocate for the applicant. Ms. Salah was resolute that, in the absence of any indication that Ms. Mchau had no instructions from Mr. Mwaiteleke, the Court cannot just act on the deponent's averments in the affidavit and grant the application. Counsel contended thus that, the applicant has not surmounted the hurdle in accounting for the delay between 24 November 2023 on which the ruling was delivered to 20 September 2024 when the applicant filed the application. She invited me to dismiss the application Equally unrelenting, Mr. Mwaiteleke argued that since it has not been contested that the applicant's advocate was not served with the notice of the ruling, he could not have instructed Ms. Mchau to hold his brief on the date the ruling was delivered. After hearing arguments from the learned advocates, I respectfully, I agree with the learned advocate for the applicant. First and foremost, from the unopposed affidavit, there is no longer any dispute that the applicant's advocates were not served with notice of delivery of the

awaited ruling on 24 November 2023. Ipso facto, it could have been humanly impossible for Mr. Mwaiteleke to have instructed another advocate to hold his brief for the delivery of the ruling. I also agree that, since, Ms. Mchau who purportedly held his brief was an advocate representing the respondent, it was upon her to take an affidavit in reply to explain the instruction given to her by Mr. Mwaiteleke rather than Mr. Mwaiteleke proving a negative that he never instructed her. Consequently, unlike Ms. Salah, I am satisfied that, on balance of probability, the applicant has disclosed a valid reason for the delay in lodging the application after excluding the technical delay from the date of the ruling of the High Court to 24 November 2023 when the notice of appeal was struck out by the Court. Regarding diligence which entails accounting for the delay, I am equally satisfied from the uncontroverted para 24 of the founding affidavit, the applicant acted promptly and lodged the application within a period of not more four days from the date it became aware of the ruling; 20 September 2024, to be exact. Apparently, Ms. Salah had no serious issue on this aspect with the net effect that, the applicant has shown good cause for the delay for me to exercise my discretion under rule 10 of the Rules. Having so held, I need not belabor discussing the life line jacket issue on illegality it being now rendered superfluous.

That said, I grant the application and extend the time within which to comply with the proviso to rule 90 (1) of the Rules as prayed in the notice of motion not later than 30 days from the delivery of this ruling. It is so ordered. DATED at DODOMA this 12th day of September, 2025. The Ruling delivered this 15th day of September, 2025 in the presence of Mr. Tazan Mwaiteleke, learned advocate for the Applicant, Ms. Faiza Salah, learned advocate for the Respondent and Mr. Soud Omar, Court Clerk via virtual Court is hereby certified as a true copy of the original. L J. S. MWANDAMBO JUSTICE OF APPEAL 8