Abbas Athumani Bantu Laki vs Kelvin Victor Mahity & Another (Civil Application No. 388/01 of 2024) [2025] TZCA 944 (9 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 388/01 OF 2024 ABBAS ATHUMANI BANTU LAKI APPELLANT VERSUS KELVIN VICTOR MAHITY (Administrator of the estate of the late Peter Walcher) ....... 1 st r e s p o n d e n t KCB BANK TANZANIA LIMITED 2 nd RESPONDENT (Application for extension of time to apply for Review of the decision of the Court of Appeal of Tanzania sitting at Dar es Salaam) 25th August & 9th September, 2025 KOROSSO. J.A.: The application before me seeks extension of time for the applicant to lodge an application for review out of time against the decision of this Court delivered on 16th August, 2022 in Civil Appeal No. 385 of 2019. It has been filed by way of notice of motion supported by an affidavit deponed by the applicant under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant's grounds for the application paraphrased are that; one, that the delay in pursuing the review are (Lila. Kitusi and Mashaka JJA.^ Dated the 16th day of August, 2022 in Civil Appeal No. 385 of 2019 RULING l

ordinate, and two, it is a technical delay as the applicant was in the corridors of the Court pursuing his rights without fail. The 1s t and 2n d respondents did not file affidavits in reply to challenge the application. The background of the matter is that the late Erick Peter Walcher as the administrator of the estate of his deceased father Peter Walcher, instituted Land Case No. 116 of 2014 in the High Court of Tanzania at Dar es Salaam against the applicants challenging the process for disposal of landed property Plot No. 145, Bahari Beach Area, within Dar es Salaam and be declared the lawful owner of the said plot Erick Peter Walcher demised while the case was ongoing before its determination. The respondent, the brother of Erick Peter Walcher, was then appointed as the successor administrator of the estate of Peter Walcher and thus became a party to Land Case No. 116 of 2014 in place of the deceased Erick Peter Walcher. At the conclusion of hearing of the suit, the High Court dismissed it. The 1s t respondent was declared the lawful owner of the disputed land and ordered that the Registrar of Titles declare the respondent to be the lawful owner of the said plot. Aggrieved, the applicant's appeal to the Court in Civil Appeal No. 385 of 2019 was unsuccessful. Subsequently, the applicant lodged an

application for review of the Court Judgment. On the 6/5/2024, when the application was called for hearing, the applicant sought leave to withdraw the appeal, which he was granted, and consequently the application was marked withdrawn. The applicant is now before me seeking extension of time to refile the application for review out of time. On the day scheduled for the hearing of the application, Mr. Mashaka Ngole, learned counsel entered appearance for the applicant. Mr. Wilson Ogunde, learned counsel represented the 1s t respondent. The 2n d respondent was represented by Mr. Elisa Abel Msuya and Irene Muya, learned advocates. Having done away with the preliminaries, when called upon to elaborate his grounds of appeal and prayers before the Court, Mr. Ngole invited me to find that the application was not resisted since neither of the respondents had filed an affidavit in reply citing Saulo Malema v. Petro Kingori [2024] TZCA 436 to augment his assertion. The learned counsel urged me to grant the prayers for extension of time to file a review out of time arguing that the failure to file it on time was occasioned by a technical delay since the applicant was pursuing his rights in the court of law. 3

Mr. Ngole argued that the technical delay can be discerned from the fact that after the decision of the Court in Civil Appeal No. 385 of 2019 was delivered on 18/8/2022, the applicant had timely filed an application for review against it in Civil Application No. 556/01 of 2022, which had to be withdrawn on 6/5/2024 due to some incurable anomaly. According to Mr. Ngole, subsequently, the applicant ventured in the follow-up of the order that marked the application withdrawn and managed to retrieve it from the website on 4/6/2024. He contended that the said follow-up was important as the said order was essential to any intended further actions to pursue his rights, including the current application. The instant application was then filed on 7/6/2.024 only three days after retrieving the order for withdrawal of Civil Application No. 556/01 of 2022. Mr. Ngole thus prayed that I find the applicant to have been diligent in pursuit of his rights and thus condone the delay in filing the application for review and grant the prayers for extension of time to file the application for review against the impugned Court of appeal judgment out of time. He implored that I be guided by the decision of the Court in Saulo Malema v. Petro Kingori (supra), where they distinguished the difference between real and technical delays in filing matters on time. On his part, Mr. Ogunde resisted the application arguing that the applicant has failed to establish the required good cause for the applicant's

prayers to be granted. He challenged the submission by the learned counsel for the applicant of having delayed generating the order of withdraw the initial application for review of the impugned decision of the Court, stating that nowhere in the affidavit supporting the application where the applicant has shown when he received the said order from the Court. He contended that since the application was withdrawn on 6/5/2024 and the instant application filed on 7/6/2024, which was one month later, the applicant should have accounted for the said one month delay and thus, no good cause has been established to warrant grant of the application, he argued. He urged us to dismiss it. For the 2n d respondent, Mr. Msuya affirmed the fact that grant of the prayer sought was within my discretion, however, urged me, when exercising such discretion to consider whether the applicant has accounted for the delay to file the application on time, which he argued was not the case. In addition, Mr. Msuya contended that when the application before the Court is one for review governed under rule 66 of the Tanzania Court of Appeal Rules, 2009 (the Rules), that when considering whether there is a good cause to extend time under rule 10 of the Rules, rule 66 of the Rules requires consideration of whether the intended review falls within the purview of the conditions therein. He thus argued that the instant application apart from seeking condonation of

delay on the argument that it was occasioned by a technical delay, the applicant has not shown in his affidavit what the intended review is for or targets, a mandatory element in application such as the instant one to determine whether the conditions for review have been addressed. He thus prayed that the application be dismissed with costs. Briefly, in rejoinder, the learned counsel for the applicant reiterated his submission in chief and asserted that the applicant should not be penalized for drawing the order from the website especially when what is averred in paragraph 3 of the affidavit supporting the application shows that the applicant had diligently followed up on the order for withdrawal of the original application physically but it was not availed to him until it was posted in TANZLII and he managed to retrieve it on 4/6/2024 and filed the current application on 7/6/2024 and thus having no undue delay. He asserted that the applicant had not pleaded illegality of impugned judgment and that rule 66 of the Rules does not address illegality and that in the instant application what should be considered is whether good cause for the delay has been established by the applicant in terms of rule 10 of the Rules. The learned counsel for the applicant stated that the prayer for costs by the counsel for 2n d respondent was unprecedented, since no affidavit in reply has been filed on their part and it would be expected that costs if any should be in the cause.

Having examined the record of the application and considered the submissions made by the parties, I am of the view that the issue for determination is whether or not the applicant has demonstrated a good cause to grant extension of time to lodge an application for review. The application is predicated under rule 10 of the Rules which provides: "The Court may; upon good cause shown , extend the time limited by these Rules or by any decision of the High Court or tribunal for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended." Under the said rule, it is upon the party who seeks such order to provide good cause for having failed to do what ought to have been done within the time prescribed by the relevant statute as reiterated in Michael Lessani Kweka v. John Eliafye [1997] T.L.R. 152; and Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002 (unreported). The discretion of the Court to extend time under rule 10 is unfettered, however, when considering such an application under the rule, courts may take into consideration various factors including, whether

the applicant has accounted for each day of delay; shown that the delay was not inordinate; displayed diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and where the court feels that there are other sufficient reasons such as the existence of the point of law of sufficient importance; such as the illegality of the decision sought to be challenged [see, Tanzania Revenue Authority v. Tango Transport Co Ltd, Tango Transport Co Ltd v. Tanzania Revenue Authority, Consolidated Civil Applications No. 4 of 2009 and 9 of 2008 and Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported (both unreported)]. In applications for review like the instant application, case law has established the requirement of showing that reasons provided for review include those spelt out in rule 66 (1) of the Rules. (See: Deogratius Nicholaus @ Jeshi v. Republic (Criminal Application 1 of 2014) [2015] TZCA 289 (16 February 2015) TanzLII and Nicholaus Mgonja @ Makaa v. Republic (Criminal Application No. 8/12 of 2023) [2024] TZCA 279 (29 April 2024) TanzLII). In the present application, from the notice of motion and the supporting affidavit, I have discerned that the reasons for the application

include that the delay is not ordinate but a technical delay since the applicant was pursuing other causes including Civil Application No. No. 556/01 of 2022, which was withdrawn, and that the instant was lodged three days after all the necessary documents to attach to the application were availed to the applicant. Whilst I have no quarrel with the reasons advanced for the delay, however, as argued by Mr. Msuya, it is well settled that in applications for review, apart from advancing reasons for delay, one has to also establish that he has an arguable case by demonstrating in the application that the intended review is predicated on the grounds falling within the purview of rule 66(1) of the Rules as stated in the case of Mwita Mhere v. Republic, Criminal Application No. 7 of 2011 (unreported) that: "Butin application of this nature, the law demands that the applicant should do more than account for the delay. To succeed in showing that he has a good cause under Rule 10 of the Rules; it must be shown further that the applicant has an arguable case. An arguable case is one that demonstrates that the intended ground of review is at least one of those listed in Rule 66 (1) of the Rules" (See also: Robert Nyengeia v. Republic, Criminal Application No. 42 of 2019 [2021] TZCA 166.(3 May, 2021) TanzLII).

Having perused the application and supporting affidavit I found nothing to show or demonstrate that the intended review will address any of the conditions prescribed under rule 66(1) of the Rules. In consequence, for the above given reasons, I find that no good cause has been shown to warrant me exercise my discretion and grant the extension of time sought by the applicant. The application is thus rendered dismissed. In the circumstances, no costs ordered. DATED at DODOMA this 4thday of September, 2025. W. B. KOROSSO JUSTICE OF APPEAL The Ruling delivered this 9thday of September, 2025 in the presence of Mr. Mashaka Ngole, learned counsel for the applicant, and Mr. Elisa Abel Msuya, learned counsel for the 2n d respondent also, holding brief for Mr. Wilson Ogunde, learned counsel for the 1s t respondent via virtual Court and Mr. Elias Nkwabi, Court Clerk; is hereby certified as a true copy of the original. 10