Avelina John Diminoff & Another vs Winley Admin Sichone (Civil Application No. 193/01 of 2024) [2025] TZCA 956 (9 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 193/01 OF 2024 AVELINA JOHN DIMINOFF ....................... .............. ........ 1 st APPLICANT RASHID HUSSEIN MKEMBE ............................................... 2N DAPPLICANT VERSUS WINLEY ADMIN SICHONE....................................................RESPONDENT [Application for extension of time within which to lodge a Notice of Appeal against the decision of the High Court of Tanzania (One Stop Judicial Centre) at Temeke Dar es Salaam] ( Rwizile. J.^ dated 25th day of September, 2023 in Civil Appeal No. 47 of 2022. RULING 27th August & 9th September, 2025 MWAMPASHI. J.A.: On 02.09.2022, vide Probate and Administration Cause No. 210 of 2021, the applicants herein, were appointed by the District Court at Temeke One Stop Judicial Centre, as administrators of the estate of the late Cecilia Carlo Diminoff. However, the applicants' appointment was successfully challenged by the respondent to the High Court whereby on 25.09.2023, in Civil Appeal No. 47 of 2022, the High Court nullified the proceedings in respect of the Probate and Administration Cause No. 210 of 2021 as well as the appointment of the applicants as the administrators i

of the estate and directed a fresh application to be made for that purpose in accordance with the law. The applicants were aggrieved by the decision of the High Court and were desirous of appealing against it. However, they delayed in taking one of the essential prerequisite steps, that is, filing a notice of appeal to this Court within 30 days of the impugned decision as required by rule 83 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). That being the case, on 15.01.2024, vide Micsellaneous Civil Application No. 708 of 2014, the applicants applied to the High Court for extension of time within which to file a notice of appeal to this Court. On 11.03.2024, the application was dismissed by the High Court hence the instant second bite application made under rule 45A (1) (a) of the Rules. The application which is by way of notice of motion is supported by the joint affidavit of the applicants and it is premised on the following grounds:

1. The court's decision is a nullify.
2. Thejudgment o f the court did not disclose the right o f appeal to the parties hence it is tainted with material irregularity. Before me, at the hearing of the application which proceeded virtually, in presence were Ms. Rose Jeremia Sanga and Mr. Pladius

Mwombeki, learned advocates, who represented the applicants and respondent respectively. Having adopted the notice of motion, the supporting joint affidavit and the written submissions filed in support of the application, Ms. Sanga submitted that in principle, the application is based on the High Court's decision is tainted with an illegality. Expounding the alleged illegality, she argued that, after delivering its judgment on 25.09.2023, the High Court did not inform the applicants about their right of appeal. Ms. Sanga further submitted that, the applicants being laypersons with no legal representation ought to have been informed that the decision by the High Court is appealable. Ms. Sanga concluded by submitting that, the High Court's failure to explain to the applicants the right of appeal, denied them not only the right of appeal but also the right to a fair hearing and was contrary to Article 13 (6) (a) of the Constitution of the United Republic of Tanzania of 1977. Most importantly, it was argued by Ms. Sanga that, the above pointed out fiasco amounts to an illegality constituting good cause for extension of time. She thus prayed for the application to be granted as sought by the applicants in the notice of motion. 3

The application was strongly opposed by Mr. Mwombeki, the learned advocate for the respondent. He submitted that the application is baseless because not explaining to the applicants that the decision by the High Court is appealable or not informing them that they had the right of appeal, is not an illegality constituting good cause for extension of time within rule 10 of the Rules. Mr. Mwombeki argued further that, explanation of the right of appeal to the parties is not one of the ingredients of a judgment as provided by Order XX rule 4 of the Civil Procedure Code, Cap. 33. He therefore prayed for the application to be dismissed with costs because no good cause has been shown. In her brief rejoinder, Ms. Sanga reiterated her submissions in chief arguing that by not being informed that they had the right of appeal against the High Court decision, the applicants were denied not only their right to appeal against the decision but their right to be heard was also curtailed. Having examined the notice of motion, the supporting affidavit and in consideration of the rival submissions from the advocates for the parties, the general issue for my determination is whether the applicants have managed to show good cause warranting extension of time in terms of rule 10 of the Rules under which it is provided that:

"The Court, may, upon good cause shown, extend time limited by these Rules or by any decision o f the High Court or Tribunal, for the doing o f any act authorized or required by these Rules, whether before or after expiration o f that time and whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended The mandate given to the Court by rule 10 of the Rules, as reproduced above, is discretional and can be exercised only if good cause is shown. Whereas there is no invariable universal definition of what constitutes good cause, it is however common ground that in exercising its discretion under rule 10 of the Rules, the Court is bound to consider the prevailing circumstances of the particular case and should be guided by a number of factors such as the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent and whether there is a point of law of sufficient importance such as illegality of the decision sought to be challenged; see- The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R 387, Dar es Salaam City Council v. Jayantilal P. Rajan, Civil Application No. 27 of 1987 (unreported) and Lyamuya Construction

Company Ltd v. The Board of Registered Trustees of Young Women's Christian Association of Tanzania [2011] TZCA4. In the instant application, the ground on which the application for extension of time within which to file a notice of appeal is pegged, is that the impugned High Court's decision is tainted with an illegality. It is argued for the applicants that, after rendering its decision which was against the applicants, the High Court did not explain or inform them that the decision is appealable. To Ms. Sanga, the failure by the High Court to inform the applicants of their right of appeal amounts to an illegality constituting good cause within the premises of rule 10 of the Rules. However, Mr. Mwombeki was of a different view. To him, such a failure does not amount to an illegality. From the two views in adversary as pointed above, an emerging and decisive issue for my consideration becomes whether the failure by the High Court to inform the applicants of their right of appeal amounts to an illegality constituting good cause for extension of time within rule 10 of the Rules. Before delving into the determination of the above posed issue, it is instructive to restate that even where the period of delay is inordinate and not accounted for, an extension of time may be granted if it is established that there is a point of law of sufficient importance such as the illegality

of the decision sought to be challenged; see- The Principal Secretary, Ministry of Defence and National Service (supra). Going back to the determination of the earlier posed issue on whether the failure to explain and inform the applicants of their right of appeal, is an illegality constituting good cause for extension of time or not, one has to be familiar with what is an illegality for purposes of extension of time. On this, I find no better fitting definition of the said term than what was given by the Court in Nathanael Mwakipiti Kigwila v. Magreth Andulile Bukuku [2025] TZCA 849, whereby having revisited a number of its own decisions and those from other jurisdictions as well, the Court came out with the following definition: " Based on the foregoing, we are o f the opinion that a claim of illegality regarding any contested decision for the purpose of a motion for extension of time, is a grievous and substantial breach of law or procedure that affects the validity of the case's resolution and outcome. It surpasses insignificanterrors or irregularities. Although both 'irregularity'and 'illegality'indicate deviations from established procedure, illegality is a more substantial violation of law or procedure, potentially rendering the decision in question a nullity. Put differently, an illegality is

indicative o f a significant flaw in the judicial process or decision-making ( , Keshardeo Chamria, (supra)" [Emphasis added]. Guided by the above definition, I am in agreement with Mr. Mwombeki's position that, under the circumstances of this matter, the High Court's failure to explain and inform the applicants of their right of appeal does not amount to an illegality constituting good cause for extension of time within rule 10 of the Rules. As argued by Mr. Mwombeki, there is no law requiring that after the delivery of a judgment, parties shall be informed that they have the right of appeal. By not informing the applicants of the right of appeal, the High Court did not breach any law. While it is the law that the applicants have the right of appeal there is no law requiring for the applicants to be informed that they have such a right. After all every person is presumed to know the law and ignorance of the law is never a defence. Further, it is my considered view that, if not informing the applicants of their right of appeal is an irregularity or violation of a procedural practice then, under the circumstances of this matter, same has no effect of rendering the decision a nullity. 8

In the event, I find that no good cause has been shown upon which I can exercise my discretion under rule 10 of the Rules and extend time within which the applicants may file the notice of appeal as sought in the notice of motion. The application is thus, accordingly dismissed. Considering the fact that this matter arose from the Probate and Administration Cause involving parties who might be relatives, I make no order as to costs. DATED at DODOMA this 4th day of September, 2025. A. M. MWAMPASHI JUSTICE OF APPEAL The Ruling delivered this 9thday of September, 2025 in the presence of Ms. Rose Jeremia Sanga, learned counsel for the applicants and Mr. Pladius Mwombeki, learned counsel for the respondent and Ms. Stella Mlaponi, Court Clerk; both through Virtual Court is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAI 9