Registered Trustees of K. K. K. T vs Mwatex (2001) Limited & Others (Civil Application No. 858 of 2025) [2025] TZCA 934 (4 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 858 OF 2025 THE REGISTERED TRUSTEES OF K. K. K. T .......... . ......... . ........... APPLICANT VERSUS MWATEX (2001) LIMITED .............................................. 1 st RESPONDENT REGISTRAR OF TITLES ................... . ...................... . ......2 nd RESPONDENT THE ATTORNEY GENERAL...............................................3 rd RESPONDENT (Application for Extension of Time to file Revision of the Judgment and Decree of the High Court of Tanzania, at Mwanza) (Robert, JM Dated 19th day of August, 2024 in Miscellaneous Land Appeal No. 6600 of 2024 RULING 27th August & . 4th September, 2025 FIKIRINI. J. A.: This matter concerns a land dispute in the Nyakato Industrial Area, Mwanza City, involving a parcel comprised initially in Certificate of Title No. 10816, but later referenced as No. 18016, measuring approximately 18.01 hectares (44.5 acres). Parties found themselves before the High Court in Land Appeal No. 30 of 2010. In its decision dated 19th August, l

2011, the High Court declared the applicant the lawful owner of Plot No. 2/1, acquired from the Loans and Advances Realisation Trust (LART) in 2001, while the 1s t respondent was held to own only Plot No. 2/2. The Court directed the Department of Survey and Mapping to facilitate separate registrations of the respective plots. Execution of the decree was undertaken in the District Land and Housing Tribunal (DLHT) at Mwanza via "Maombi Madogo" No. 321 of 2023. In its ruling dated 21s t December, 2023, the DLHT appointed an auctioneer to enforce the transfer and ordered the Assistant Registrar of Titles to register Plot No. 2/1 in the applicant's name. Accordingly, on 3r d April, 2024, the 2n d respondent (Registrar of Titles) effected the registration of Plot No. 2/1 to the applicant. The 1s t respondent appealed the execution in Land Appeal No. 22245 of 2024 before the High Court, which dismissed the appeal. However, during the hearing on 22n d October, 2024, the applicant became aware of a separate ruling in Miscellaneous Land Appeal No. 6600 of 2024, dated 19th August 2024, In that matter, filed by the 1s t respondent against the Registrar of Titles and the Attorney General, the High Court cancelled the rectification of the land register that had 2

transferred 10.82 acres (Plot No. 2/1) to the applicant, effectively reversing the earlier decree. Notably, the applicant was not a party to those proceedings. The applicant asserts that it was not aware of Miscellaneous Land Appeal No. 6600 of 2024, as it was not joined as a party to those proceedings. Upon learning of the impugned decision during the hearing of Land Appeal No. 22245 of 2024 on 22n d October, 2024, the applicant promptly initiated steps to obtain the relevant court documents. On 13th November 2024, the applicant applied to the High Court Deputy Registrar for certified copies of the proceedings, judgment, and decree (Annexure "RTK4"). A follow-up reminder was issued on 5th May 2025, and the requested documents were received on 7th May, 2025 (Annexure "RTK5"), which included a certificate of delay. With that historical background and since the applicant was out of time to file for revision, the process had to be preceded by the present application for extension of time within which to apply for revision. By way of Notice of Motion under Rules 10 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant moved 3

the Court seeking an extension of time within which to apply for revision of the decision of the High Court of Tanzania at Mwanza in Miscellaneous Land Appeal No. 6600 of 2024. The application is supported by the affidavit of Joshua Kyelekule, the Principal Officer of the applicant, sworn on 7th May, 2025. In its notice of motion and affidavit in support, the applicant contends that the impugned High Court decision contains illegalities of public importance, and the delay in filing for revision is not intentional but rather attributable to her lack of awareness of the decision, due to circumstances beyond her control. In the affidavit specifically, the applicant had accounted for the total delay of 261 days from the date of the impugned decision, the 19th August, 2024. The accounting is as follows: 64 days as time taken to discover the existence of the judgment, followed by 21 days as time taken to apply for certified copies after discovery and 176 days reflected in the certificate of delay as time taken before the applicant was furnished officially certified copies. This timeline substantiates the applicant's position that the delay was neither deliberate nor negligent, 4

but rather occasioned by procedural and administrative constraints beyond its control. The 1s t respondent opposed the application through the affidavit of Amin Ladhani, the Principal Officer of the 1s t respondent. During the hearing, Mr. Gunda and Mr. Silas John learned advocates appeared for the applicant, whereas Mr. Constantine Mutalemwa and Mr. Innocent Kisigiro also learned advocates appeared for the 1s t respondent and Mr. Lameck Merumba, learned Principal State Attorney, for the 2n d and 3r d respondents. Submitting in support of the application, the counsel submitted that the application rests on two pillars: glaring illegalities in the impugned decision and a fully accounted for delay. The applicant's counsel contended that the decision is marred by four apparent illegalities justifying intervention by this Court: first, the High Court determined the matter against the applicant without joinder, violating the applicant's constitutional right to be heard. The absence of joinder rendered the proceedings fatally defective and the resulting decision a nullity in law. Second, the High Court lacked jurisdiction to entertain the matter, having become functus officio upon the filing of a notice of appeal in

Land Appeal No. 30 of 2010. The impugned decision revisited and adjudicated issues previously determined in the said appeal, thereby exceeding the Court's jurisdiction and contravening the principle of finality. Third, the decision contravened section 99 (l)(a) and (b) of the Land Registration Act, Cap. 334 Revised Laws, which permits rectification of the land register based on court determinations of ownership, not limited to findings of fraud. The High Court's interpretation, restricting rectification solely to fraud, amounted to a judicial amendment of the statute and undermined the legislative intent. Fourth, the order to maintain the status quo pending appeal violated the settled principle that an appeal does not operate as a stay of execution. The High Court's directive effectively suspended enforcement of a lawful decree without a proper legal basis, thereby prejudicing the Applicant's rights. In light of the foregoing, the applicant submits that the impugned decision is legally untenable and warrants urgent intervention by this Honourable Court. To support his position on the illegalities pointed out, Mr. Gunda cited the following authorities: Lugwisha s/o Nguinamila v. James Luguigui (Civil Appeal No. 195 of 2019) [2023] TZCA 17577 (29 August 2023; TANZLII), Aero Helicopter (T) Ltd v. Jensen 6

[1990] T.L.R 142, Director Tanga Cement Ltd v. Ephraim Joram (Civil Application No. 307/18 of 2024) [2024] TZCA 907 (19 September 2024; TANZLII). On delay, Mr. Gunda submitted that the applicant was not a party to Miscellaneous Land Appeal No. 6600 of 2024. She became aware by sheer luck on 22n d October, 2024, while attending other proceedings. On the other hand, the counsel submitted that, even if the delay is not satisfactorily explained, the existence of illegality is in itself a sufficient ground for extension of time. The Court was referred to the case of Cosmas Faustin v. R (Criminal Application No. 76/04 of 2019) [2020] TZCA 1905 (17 December 2020; TANZLII). The applicant argued that the delay was not due to negligence but rather to circumstances beyond the applicant's control, and the application was filed diligently after receipt of the copies. They prayed for the application to be granted with costs. Mr. Merumba, on behalf of the 2n d and 3r d respondents, did not oppose the application. Mr. Kisigiro opposed the grant of the application, arguing the High Court acted appropriately under section 102 of the Land Registration

Act, not section 99 (1) (a). There was no need to hear the applicant, as she was not involved in the rectification request, and no prejudice arose. Additionally, the learned counsel argued that no issue of illegality, apparent on the face of the record, had been established to justify the delay. Illegality cannot excuse unaccounted delay. Negating the reliance on the certificate of delay, the counsel contended that the certificate of delay, which was issued, pertained to an appeal, not this application, rendering it invalid. The delay from November 2024 to May 2025 evinced negligence. He prayed for dismissal of the application with costs. Rejoining, Mr. John contended that the 1s t respondent's submissions confirmed illegalities, including non-joinder and misapplication of section 99. Annexure RTK1 shows the High Court ordered registration in the applicant's name in Land Appeal No. 30 of 2010, which the impugned decision reversed without hearing. The status quo order contravened the principles of execution. The delay was attributed to non-party status and registry delays; the certificate's reference to "appeal" was a typographical error, which could be rectified. Illegality suffices. 8

The application before this Court is premised on the provisions of Rule 10 of the Rules. The said Rule empowers the Court to exercise its discretion to grant an extension of time upon good cause being shown, For ease of reference, Rule 10 provides: "The Court may, upon good cause shown, extend the 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 the expiration o f that time and whether before or after the doing o f the act; and any reference in these Ruies to any such time shall be construed as a reference to that time as so extended." It follows, therefore, that the applicant bears the burden of satisfying the Court that "good cause" exists to justify the delay in filing the intended application. This principle has been underscored in various decisions of this Court, including Kalunga & Company Advocates Ltd v. National Bank of Commerce Ltd [2006] T.L.R 235 and Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania (Civil Application No. 02 of 2010) [2011] TZCA 4 (3 October 2011; TANZLII). 9

In determining what constitutes "good cause," the Court has developed guiding principles, notably in Lyamuya case (supra), where it was held that:- a) The applicant must account for all days o f the delay. b) The delay should not be inordinate. c) The applicant must show diligence and not apathy, negligence, or sioppiness in the prosecution o f the action that he intends to take. d) I f the Court feels that there are other reasons, such as the existence o f a point of law of sufficient importance, such as the illegality o f the decision sought to be challenged. It is well settled that these criteria are not cumulative, and the presence of one may suffice depending on the circumstances of the case. Particularly, the Court has held that illegality, once raised, may constitute "good cause" sufficient to warrant an extension of time. This position was firmly established in Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.LR 387, where the Court stated: "... our view when the point at issue is one alleging illegality o f the decision being 10

challenged, the Court has a duty even if it means extending the time for the purpose to ascertain the point and if the alleged illegality be established, to take appropriate measures to put the matter and the record righ t" In the present matter, the applicant contends that the impugned decision is tainted with illegality. The basis of the claim arises from "Maombi Madogo" No. 321 of 2023, wherein the Register of Titles was ordered to rectify the land register in favour of the applicant. The applicant avers, through her affidavit, that she is the lawful owner of the land described in Certificate of Title No. 10816, situated in Nyakato Industrial Area, Mwanza City, having been declared as such following her success in Land Appeal No. 30 of 2024. However, it is alleged that Miscellaneous Land Appeal No. 6600 of 2024 was subsequently filed and determined by the same court, without the applicant's knowledge or participation. The High Court, in that appeal, ordered the cancellation of the applicant's Certificate of Title. The applicant was not joined as a party, and the decision was made in her absence. li

This raises serious questions of procedural fairness and jurisdiction. The right to be heard is a cardinal principle of natural justice, and its violation renders any resulting decision a nullity. This principle has been reiterated in Abbas Sherally & Another v. Abdul S.H.M. Fazalboy, (Civil Application No. 183 of 2005) [2006] TZCA 82 (24 July 2006; TANZLII), where the Court held:- "The right to be heard before adverse action or decision is taken against such a party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in vioiation o f it wifi be nuifified even if the same decision would have been reached had the party been heard because the vioiatfon is considered to be a breach o f naturaljustice ." Moreover, the applicant raises four distinct grounds of illegality in paragraph 9 of her affidavit;

1. The High Courtdetermined the matter against the applicant withoutjoinder, violating her right to be heard and rendering the decision a nullity; 12

2. The High Court lackedjurisdiction, having become functus officio upon the fifing o f a notice o f appeal in Land Appeal No. 30 o f 2010 ;

3. The decision contravened section 99 (1) (a) and (b) o f the Land Registration Act, Cap. 334 Revised Laws by restricting rectification solely to fraud, contrary to the statute's broader scope;

4. The order to maintain the status quo pending appeal violated the principle that an appeal does not operate as a stay o f execution. These grounds, taken collectively, raise serious questions of law and procedure that merit the Court's scrutiny. In TANESCO v. Mufongo Leonard Majura and 15 Others, (Civil Application No. 230 of 2016) [2017] TZCA 1200 (1 June 2017; TANZLII), the Court held: " Notwithstanding the fact that the applicant in the instant application has failed to sufficiently account for the delay in lodging the application, the fact that there is a complaint o f illegality in the decision intended to be impugned, suffices to move the Court to grant extension o f time so that the Court can address the alleged illegality." 13

In view of the foregoing, and guided by the jurisprudence of this Court, I am satisfied that the applicant has demonstrated good cause, anchored on the existence of apparent illegalities in the impugned decision. Accordingly, the application for extension of time is granted and the applicant is ordered to lodge her application for revision within sixty (60) days from the date of this order. DATED at DODOMA on this 4th day of September, 2025. P. S. FIKIRINI JUSTICE OF APPEAL Ruling delivered this 4th day of September, 2025 in the presence of Mr. Melkizedeck Gunda, learned counsel for the Applicant, Mr. Innocent Kisigiro, learned counsel for the 1s t Respondent, Mr. Lameck Merumba, learned Principal State Attorney for the 2n d and 3r d Respondents via virtual Court and Mariam Kivuma, Court Clerk; is hereby certified as a true copy of the original.