Eveline L. Ndyetabula vs Star General Insurance (T) Ltd & Another (Civil Application No. 921/01 of 2023) [2025] TZCA 966 (12 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 921/01 OF 2023 EVELINE L. NDYETABULA ...................................... . ...... . ........ APPLICANT VERSUS STAR GENERAL INSURANCE (T) LTD ............................... 1 st RESPONDENT NDANU INSURANCE BROKERS (E. A) LTD ....................... 2 nd RESPONDENT (Application for extension of time to file Notice and Leave to appeal to the High Court of Tanzania at Dar es Salaam) fMwanaa. 3.1 dated the 25th day of November, 2022 in Misc. Civil Application Nos. 438 & 440 of 2022 RULING 2n d & 12th September, 2025 LEVIRA. J.A.: This ruling is in respect of points of preliminary objection raised by the counsel for the first respondent, one Joseph Kipeche against this second bite application for extension of time to file notice and leave to appeal to the Court of Appeal of Tanzania (the Court). The grounds of preliminary objection as per the notice lodged in Court on 15th March, 2024 are as follows:

1. That the present second bite application is hopelessly time barred.

2. That the application is incompetent as the parties in the first bite application before the High Court in consolidated Misc. Civil Application Nos. 438 and 440 o f2022 are different with the parties in the present second bite application. At the hearing of the grounds of preliminary objection, Mr. Kipeche appeared representing the first respondent, whereas Mses. Joice Sojo and Anna Amon, both learned advocates represented the first respondent. The second respondent did not enter appearance despite being duly served with the notice of hearing. As a result, hearing of the preliminary objection proceeded in his absence in terms of Rule 63 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Addressing the Court in support of the second point of preliminary objection, Mr. Kipeche submitted that the present application being a second bite, application, is incompetent. His argument was based on the fact that, in consolidated Misc. Civil Application No. 438 and 440 of 2022, the parties who appeared before the High Court were only two; to wit, the present applicant, Eveline J. Ndyetabula and the first respondent, Star General Insurance (T) Limited. The current second respondent, Ndanu Insurance Brokers (E.A) was not a party. In the Circumstances, he argued further that, since this is a second bite application preferred under Rule 45A (1) of the Rules after refusal by the High Court of the same application

(the first bite application), parties ought to have been the same as those who appeared before the Court. He added that, in the first bite application, the second respondent herein was not heard. Therefore, it is improper to include her in this application and this makes the entire application incompetent as it contravenes Rule 45A (1) of the Rules. His line of argument in relation to this provision was that, as far as the second respondent is concerned, there is no refusal by the High Court of his similar application to justify this second bite application on his part. He thus urged me to sustain this point of preliminary objection with costs. In reply, Ms. Sojo commenced her submission by conceding that, indeed, parties in the first bite application are different from the present application by adding the second respondent who was not a party therein. However, she wondered whether the counsel for the first respondent was engaged to speak for the second respondent. According to her, the second respondent ought to have raised this issue, not the counsel for the first respondent. She went on to submit that the intended appeal is in respect of the illegality occasioned by the court which, at any time, when rectification of the parties will be done it will be problematic because it will never end.

She insisted that, the counsel for the first respondent is trying to bring technicality. She referred us to paragraph 28 of the affidavit in support of the application where it was stated that the reason for the withdrawal of the previous second bite application No. 742/01 of 2022, which was called on for hearing before the Court on 8th November, 2023 was due to the fact that the parties appearing in that application were not the same as those appearing in the Judgment which is intended to be contested. Ms, Sojo argued vehemently that, the second respondent was condemned un heard contrary to her rights provided in the Constitution. Therefore, she urged me see the importance of joining the second respondent and proceed with the hearing of the application and dismiss the second point of preliminary objection with costs. In rejoinder Mr. Kipeche submitted that, the point he raised regarding the difference of parties is a point of law. Being an officer of the Court just as the counsel for the applicant, he had a duty to address it as the counsel for the applicant talked about the second respondent's right to be heard. According to him, the argument by the counsel for the applicant that he was not engaged by the second respondent to represent her, holds no water.

Regarding the argument by Ms. Sojo that Rule 45A (1) of the Rules is irrelevant in the second point of preliminary objection, Mr. Kipeche insisted that the said Rule is relevant as the catching phrase in that provision is, "where an application for extension o f time is refused by the High Court /'The parties who appeared at the High Court should be the same as those who come to the Court for a second bite application. In that sense, he reiterated that the point of preliminary objection raised is valid, and urged me to sustain it. I have carefully considered the rival arguments by the counsel for the parties and thoroughly gone through the record of this application. The issue for determination in respect of the second point of preliminary objection is, whether the application before me is incompetent for contravening Rule 45A (1) of the Rules for including a party who was not included in the first bite application before the High Court. The counsel for the parties were at one that, this is a second bite application preferred under Rule 45A (1) of the Rules after refusal of a similar application by the High Court. It is, as well, not in dispute between the parties herein that the parties who appeared before the High Court in the first bite application are different from those appearing in this application as the second respondent herein was not a party in the first

application before the High Court, that is in the consolidated Misc. Civil Application Nos. 438 and 440 of 2022. Rule 45A (1) of the Rules under which this application is preferred provides that: " 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 certificate on point o f law is refused by the High Court, the applicant may within fourteen days o f such decision apply to the Court for extension o f time". From the above provision, the counsel for the first respondent took a position that, for the application to qualify as asecondbiteapplication, the first application must be refused by the High Court. Meaning that a similar application, with same parties, is presented before the Court. On her part, Ms. Sojo held a different position as she thought since one of the illegalities expected to be cured by the intended appeal is the issue of parties where the second respondent was included in the impugned decision of the High Court in Civil Appeal No. 19 of 2018 without being heard, including her in this second bite application for extension of time, is proper. I find that the line of argument by Ms. Sojo was preferred

beyond the scope of the point of preliminary objection raised. I say so because, the issue as to whether the impugned decision of the High Court contained any illegality to justify extension of time can better be argued while dealing with this application on merit. Nonetheless, I wish to note from the record that in the judgment of the High Court in Civil Appeal No. 19 of 2018 intended to be appealed against, the second respondent was a party though according to Ms. Sojo was not accorded a right to be heard. The applicant was aggrieved by that decision and she decided to appeal against it. Since she was out of time to do so, she had to apply for extension of time to the High Court vide Consolidated Misc. Civil Application Nos. 438 and 440 of 2022. The applicant opted to leave behind the second respondent and applied only against the first respondent. The application was refused by the High Court and thus in terms of Rules 45A (1) of the Rules, she lodged Civil Application No. 742/01 of 2022 to the Court. The parties in the said application were only two, that is, those who appeared in the refused application by the High Court. The second respondent was excluded. When the application was called on for hearing on 8th November, 2023, counsel for the applicant prayed to withdraw it with a view of joining the second respondent as a party as per paragraph 28 of the supporting

affidavit. The prayer was granted with leave to refile, hence the present application. As it can be observed from the sequence of events narrated above, the idea of including the second respondent in the second bite application for extension of time was introduced and executed by the counsel for the applicant. I further observe from the supporting affidavit at paragraph 8 as follows: "That, on 9 h April, 2018 when the appeal [Civil Appeal No. 19 o f 2018] was scheduled for mention , the 1st respondent herein being the appellant in the High Court prayed for the amendment o f memorandum o f appeal by removing the 2n d respondent from the appeal and the prayer was granted forthwith...." Since the second respondent was dropped by the first respondent at the hearing of the appeal before the High Court as shown above, the applicant did not consider that in its judgment, the High Court included her. Thus, she opted to exclude her when she filed the application for extension of time before the High Court and the initial second bite application before the Court. However, it can be observed that when she realized that the second respondent was supposed to be joined as stated

at paragraph 28 of the supporting affidavit, she withdrew the application. For easy refence, this paragraph reads: "That, the application No. 742/01 o f 2022 was called on for hearing on &h November, 2023 before Hon. Mgeyekwa, J.A whereby the applicant's advocate prayed to withdraw the application with leave to refile on the reason that the parties appearing on the Appiication are incomplete from those appearing on the judgment which is intended to be contested and the prayer was granted..." [Emphasis added]. Ironically, the applicant came to the senses that the second respondent was supposed to be included at a higher stage when the matter came for second bite application. This may mean that she attempted to correct her previous mistake of rectifying the court record made at the first application through the back door. At the same time, her concern was that the second respondent was not accorded an opportunity to be heard by the High Court on appeal and this is what she referred to as an illegality. It is not apparent what motivated her this time around while in the first bite application, she did not see any need of including the second respondent as a party in order for her to be accorded a right to be heard.

I wish to state it at once that, the record of the court, regardless of the errors it may contain, cannot be rectified by either a party to a case or his/her counsel. It is the court, be it the same which conducted the proceedings and gave decision or the higher court that can correct or rectify errors. In my considered view, what the counsel for the applicant was trying to do, with respect, was to rectify the record of the High Court which is not within her mandate. If at all, the amended memorandum of appeal did not tally with the judgment in terms of the parties who appeared therein, the proper cause was not to ignore the second respondent who appeared in the impugned judgment while applying for extension of time before the High Court. A simple logic behind this position is that, whether right or wrong the decision intended to be appealed against included the second respondent as a party and thus the applicant ought to have included her in the first bite application for extension of time. As correctly, in my view, submitted by Mr. Kipeche, since the present application was preferred under Rule 45A (1) of the Rules as a second bite application, inclusion of the second respondent as a party erodes the justification of terming this application a second bite in respect 10

of the second respondent who was not heard in the first application before the High Court. As a result, the application at hand becomes incompetent. It is settled position that, the court cannot determine or deal with an incompetent matter. The only remedy available for it, is to strike out the same. However, before I do that, I wish to point out that the second ground of preliminary objection is capable of disposing of this application. Therefore, I do not find any compelling reason for me to determine the first ground of preliminary objection. Consequently, I sustain the second point of preliminary objection and strike out this application for being incompetent with costs. DATED at DODOMA this 9th day of September, 2025. M. C. LEVIRA JUSTICE OF APPEAL Ruling delivered this 12th day of September, 2025 in the presence of Ms. Joice Sojo, learned counsel for the Applicant, Mr. Joseph Kipeche, learned counsel for the 1s t Respondent and in the absence for the 2n d Respondent via vitual Court and Nelson, Court Clerk; is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL li