Hassan Abdallah Kitigi & Others vs Temeke Municipal Council & Another (Civil Application No. 1590 of 2024) [2025] TZCA 926 (3 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1590 OF 2024 HASSAN ABDALLAH KITIGI ........ , .................................... 1 st APPLICANT UWESU ABDALLAH MOHAMED ..... . .................................. 2 nd APPLICANT SELEMAN JUMA SALAMBA . ......................... . .....................3 rd APPLICANT VERSUS TEMEKE MUNICIPAL COUNCIL......................................... 1 st RESPONDENT THE ATTORNEY GENERAL ........................ .................... 2 nd RESPONDENT (Application for Extension of Time to file a Notice of Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (HemecLi) dated 24th day of November, 2023 In Land Case No. 6 of 2023 RULING 26th August & . 3rd September, 2025 FIKIRINI. J.A.: The applicants had initially instituted Land Case No. 6 of 2023, claiming ownership of the business venues, shops, and frames located at Keko Magurumbasi Market, in Temeke Municipality, Dar es Salaam. The suit could not culminate in a judgment and decree of the court, as it was dismissed for want of prosecution on 24th November, 2024. The twists and turns experienced after the dismissal order led the applicants to knock on the doors of this Court, vide an application for extension of l

time preferred in terms of Rule 10 and 45 A (1) (a) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by a joint affidavit of the applicants, namely Hassan Abdallah Kitigi, Uwesu Abdallah Mohamed, and Seleman Juma Salamba, hereinafter referred to as the 1s t, 2n d , and 3r d applicants. In addition, Mr. Juma Nassoro, learned advocate/ representing the applicants, deponed an affidavit to supplement theirs. Mr. Thomas Mahushi, learned State Attorney, deponed an affidavit in reply contesting the grant of the application for extension of time. On the hearing day, Mr. Nassoro and Mr. Mahushi were present in Court to argue the application. Mr. Nassoro, commenced by informing the Court that the present application is a "second bite" application, following the rejection of the initial application in High Court Miscellaneous Land Application No. 24416 of 2024/ whose decision was delivered on 13th December, 2024. Pursuant to Rule 45A (1) of the Rules, the applicants are entitled, as of right, to file the same application before the Court of Appeal, which they did on 24th December, 2024. 2

Following the High Court's dismissal order, the applicants opted to appeal to this Court. However, they could not proceed unless the leave sought to extend the time for lodging the notice of appeal is granted. The learned counsel advanced two main reasons for filing the present application before this Court, which had also been argued before the High Court:

1. The applicants had been actively pursuing several applications challenging the main suit, the most recent being the decision of 13th December, 2024.
2. The dismissal order in the main suit infringed upon the applicants' constitutional right to a fair trial and legal representation, amounting to an illegality. The whole saga began to unfold on 24th November, 2023, when the main suit was dismissed. The learned counsel was then engaged in Criminal Sessions, holding a dock brief. The applicants were present in court and informed the trial Judge the absence of their advocate who was attending Criminal Sessions No. 218 of 2022, as elaborated in paragraph 3 of the joint affidavit. Proceedings on pages 493-^94 of the record of appeal, confirmed that the applicants' counsel was among the advocates representing parties in that session. Additionally, page 487 of 3

the record of appeal reflected his name in the Coram as representing the 3r d accused person. The learned counsel went on to submit that it is a well-established practice for the Deputy Registrar of the relevant Registry to inform other courts of the ongoing Sessions and the engagement of the listed advocates. In this instance, the information was expected to flow easily, given the proximity of the buildings. Moreover, the applicants themselves notified the court of their counsel's engagement. The failure to uphold the right to a fair trial and full legal representation constitutes an illegality. Denying the applicants the opportunity to lodge their notice of appeal would therefore amount to a violation of their rights. In support of his submission, the learned counsel relied on precedents from this Court, including Fortunatus Masha v. William Shija & Another (1997) T.L.R 154, and Bank M (T) Ltd v. Enock Mwakyusa (Civil Application No. 520/18 of 2017) [2018] TZCA 291 (25 October 2018; TANZLII). He urged the Court to find that the delay was technical in nature, as the applicants had been actively pursuing remedies before the trial court and had not remained idle. 4

In conclusion, the learned counsel emphasized the well-established principle that an illegality constitutes sufficient cause to warrant the grant of an extension of time. He wound up his submission, persuading the Court to grant the application, convincing it that the respondent would not be prejudiced. Mr. Mahushi, opposing the grant of the application, drew the Court's attention to the principles laid down in Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4 (3 October 2011; TANZLII), particularly at page 6. He contended that the Court articulated clear guidelines for granting an extension of time, one of which is that the applicants must account for each day of delay, regardless of how minimal. Notwithstanding the applicants7claim that the delay is "technical," several unaccounted periods remain. Specifically: from 24th November, 2023 to 4th December, 2023 (10 days), prior to the filing of Miscellaneous Land Application No. 26782 of 2023. Again, from 16th May, 2024, when the said application was struck out to 28th May, 2024, when Miscellaneous Land Application No. 24416 of 2024 was filed. These gaps were not addressed in the applicants' affidavit, and that 5

failure to account for these periods undermines the sufficiency of cause required for the exercise of the Court's discretion. On the issue of illegality as a ground for extension, the learned State Attorney referred the Court to page 10 in the Lyamuya case (supra), where the Court emphasized that illegality must be apparent on the face of the record. He stressed that the applicants had failed to demonstrate such illegality. Instead, they merely referred to proceedings on pages 493^94 of the record of appeal, which do not clearly establish a denial of representation. Furthermore, in his submission, he noted that the record indicates the case had been adjourned multiple times at the request of the applicants' counsel. On 2n d November, 2023, the Court granted a final adjournment at the applicants' request. However, on 24th November, 2023, although the applicants were present, neither of their two counsel, Mr. Juma Nassoro nor Ms. Fauzia Kajoki, appeared. The Court declined the applicants' request for a further adjournment and directed them to proceed with the case, but they refused to do so. Consequently, the suit was dismissed, with the Court noting that it was the third time the matter failed to proceed due to counsel's absence. 6

The learned State Attorney concluded that the alleged illegality was neither apparent nor substantiated, and even if arguable, would require a protracted inquiry. He therefore prayed for the dismissal of the application with costs. In a brief rejoinder, the learned counsel reiterated that on 24th November, 2023, he was engaged in Criminal Sessions, a fact acknowledged on pages 1-2 of the ruling dismissing the suit. This indicates that the trial Judge was aware of counsel's absence and had been informed by the applicants. On the contention that illegality was not apparent, counsel refuted the claim, asserting that his absence due to official court duty constituted a denial of the applicants' right to representation. He submitted that once the applicants have filed a notice of appeal, the Court, will be in a position to determine: (i) Whether the denial of representation amounted to illegality. (ii)Whether such a denial constituted a breach of the right to a fair trial. Regarding the alleged failure to account for certain days, counsel clarified that he had been continuously engaged in Criminal Sessions. 7

Therefore, if there was any gap, it was due to the intervening period, including weekends. The present application was filed on 24th December, 2024. Concluding, he remarked that a delay of 2-11 days for preparation did not amount to inordinate delay. The learned counsel also strongly disputed the assertion that the applicants had two advocates representing them. He pointed out that he was the sole legal representative throughout the proceedings and that Ms. Fauzia Kajoki was not. In the interest of justice, he urged the Court to grant the application, noting that the right to appeal is a constitutional right. Before I proceed, let me emphasize two key principles: that court orders must be obeyed and that there must be substantial material placed before the court to justify the grant of an application for extension of time. In this instance, the extension of time sought is to permit the Applicants to lodge their notice of appeal out of time. In the case of Ratman v. Cumarasamy and Another (1964) 3 All ER, the Court stated " The rules o f court must be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to 8

be taken there must be some materiaI upon which the court can exercise its discretion. I f the iaw were otherwise, a party in breach would have an unqualified right to an extension o f time which would defeat the purpose o f the rules, which is to provide a timetable for the conduct o f litig a tio n [Emphasis added] Alternatively, there must be a valid reason to grant the application for an extension of time or otherwise. The primary requirement at this point is that all relevant factors must be made available to the court. As elucidated in Mbogo v. Shah [1968] E. A. 93, which stated:- "All relevant factors must be taken into account in deciding how to exercise the discretion to extend time. These factors include the length o f the delay, the reason for the delay, and the degree o f prejudice to the respondent or defendant if time is extended \ "[Emphasis added] The list is not exhaustive, but the guidelines have been well embodied in Rule 10 of the Rules. That this Court is vested with unfettered discretionary powers to grant extension of time, however, those discretionary powers must be judiciously exercised according to 9

the rules of reason and justice, not personal whims. For ease of reference the Rule is provided below:- "The Court may, upon good cause shown, extend the time limited by these Ruies or by any decision o f the High Court or tribunal for the doing o f any act authorized or required by these Ruies, 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 shaii be construed as a reference to that time as so extended." It is common knowledge that there is no single definition of what constitutes good cause. As such, each case must be determined based on its own unique circumstances. (See Osward Masatu Mwizaburi v. Tanzania Fish Processing Ltd, (Civil Application No. 13 of 2010) [2012] TZCA 450 (1 March 2012; TANZLII). After laying down the principles governing the application of Rule 10 of the Rules, the pertinent question to be answered is whether the applicants have demonstrated sufficient cause to warrant the grant of the application. 10

There is so far no dispute that the present application was lodged within fourteen (14) days as required under Rule 45 A (1) (a) of the Rules, based on the fact that the High Court on 13th December, 2024, refused the grant of the application for extension of time. Following the dismissal order, this application was lodged on 24th December, 2024. According to the Applicants, they were compelled to prosecute their case in the absence of their advocate, who had a good reason for not being in court on 3r d November, 2024. By ordering so, the trial Judge denied the Applicants their right of representation by an advocate. Associating what has been submitted with the affidavits in support of the application, indeed, the Applicants had pursued several applications after the dismissal of Land Case No. 3 of 2023. They started with Miscellaneous Land Application No. 26782 of 2024, seeking to set aside the dismissal order. This application was struck out on 16th May, 2024. Undeterred, following the struck out order, the Applicants preferred Miscellaneous Land Application No. 12450 of 2024, seeking an extension of time to file for review of the dismissal order dated 24th November, 2023. This application was granted on 28th June, 2024, paving the way for lodging of Miscellaneous Land Application No. 16321 of 2024, which was dismissed on 10th September, 2024. This prompted li

the filing of Miscellaneous Land Application No. 24416 of 2024, seeking an extension of time to lodge a notice of appeal. The application was declined and dismissed on 13th December, 2024. The present application seeking an extension of time as a second bite to lodge a notice of appeal out of time stems from that dismissal order. The Respondent contests the assertion, arguing that the Court lacked sufficient documentation to support the claim. Specifically, no formal letter from the Applicants' advocate, cause list, or summons was attached to justify the advocate's absence on the scheduled hearing date. As a result, this application was filed following several previously unsuccessful attempts. Reviewing the affidavits and submissions presented in Court, the Applicants' advocate advanced two arguments: first, that the delay was technical, as the Applicants had actively pursued their case through appropriate legal channels; and second, that the court's directive requiring the Applicants to proceed without their advocate and the subsequent dismissal when they declined violated their constitutional right to legal representation. 12

The learned State Attorney opposed the classification of the delay as technical, relying on the authority of Lyamuya (supra), which underscores the principle that every single day of delay must be accounted for. The record, however, demonstrates that following the dismissal order, the Applicants promptly initiated efforts to vindicate their rights by filing multiple applications. Although most were unsuccessful, one application for an extension of time to file for review was granted through a ruling dated 28th June, 2024. The Respondent does not dispute the existence of these applications. The Respondent's contention centres on two specific periods of unexplained delay: the ten (10) days interval between 24th November, 2023, after the dismissal order and 4th December, 2023, when Miscellaneous Land Application No. 26782 was filed; and the twelve (12) day gap from 16th May, 2024, to 28th May, 2024. No detailed explanation for these periods was provided in the notice of motion or the supporting affidavits. The Applicants' advocate submitted that the time was spent preparing the applications, but this assertion was made only during the rejoinder submissions. Such an explanation, absent from the pleadings, cannot be relied upon. 13

In Bushiri Hassan v. Latifa Lukio Mashayo, (Civil Application No. 3 of 2007), the Court unequivocally held that in applications for extension of time, each day of delay must be accounted for, even for a single day. This requirement was reaffirmed in Farida F. Mbarak and Another v. Domina Kagaruki and 4 Others, (Civil Reference No. 14 of 2019), where the Court acknowledged that time may be spent preparing and filing an application, but emphasized that such facts must be expressly stated in the notice of motion or the supporting affidavit. In the present application, no such averment was made in the pleadings. The explanation offered by the Applicants' advocate during rejoinder submissions amounts to a statement from the bar, which, as held in Farida Mbarak (supra), cannot be acted upon. The Court in that case stated:- " Further, we find that the explanations o f the deiay given by the applicants in their written submissions before the single Justice and also the explanations by Messrs. Mbwambo and Nyika in their respective submissions before us, that the 5 days were spent in preparing and filing the application, to be statements from the bar, which cannot be acted upon. As correctly held by the single Justice, the explanations needed 14

to be given in the notice of motion or the supporting affidavit" [Emphasis added] In light of the foregoing, and in the absence of any explanation in the notice of motion or affidavits in support, I am inclined to agree with the learned State Attorney that the Applicants have failed to account for each day of the delay. While it is conceivable that the time could have been genuinely spent as claimed, the burden lies with the Applicants to provide a complete and satisfactory explanation, which they have not. The Court cannot therefore engage in speculation. Turning to the alleged illegality of the decision sought to be challenged, the law is settled: where illegality is raised as a ground for seeking an extension of time, such ground amounts to sufficient cause. The Applicants contended that the High Court breached their right to representation by ordering them to proceed in the absence of their advocate, who was engaged in Criminal Sessions. The learned State Attorney argued that the alleged illegality must be apparent on the face of the decision being challenged. As affirmed in the Lyamuya case (supra) and Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] TLR 185, the position I subscribe to, that the 15

illegality must be of significant importance and apparent on the face of the record. In the present application, the alleged illegalities raised are pointed out in the notice of motion and in paragraph 10 of the Applicants affidavit. It is settled law that where illegality is raised as a ground in an application for extension of time, it constitutes sufficient cause. In the Devram Valambhia case (supra), the Court held: "In our view, when the point at issue is one alleging illegality o f the decision being 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 right" This position was reaffirmed in VIP Engineering and Marketing Limited and Three Others v. Citibank Tanzania Limited, Consolidated Civil Reference Nos. 6, 7 and 8 of 2006 [2007] TZCA 165 (26 September 2007; TANZLII). I acknowledge that, sitting as a single Justice, I am not required to undertake a comprehensive examination of the merits of the alleged illegalities. Nonetheless, upon a preliminary review of the High Court's 16

decision, it appears that the issues raised, namely: (i) whether the denial of legal representation constitutes an act of illegality, and (ii) whether such denial amounts to a violation of the right to a fair trial, present sufficient grounds to justify the granting of the relief sought. As stated above, I hereby grant the application for an extension of time. The Applicants are to lodge their notice of appeal to the Court within thirty (30) days from the date of delivery of this ruling. Costs to be in the cause. DATED at DODOMA on this 3r d day of September, 2025. Ruling delivered this 3r d day of September, 2025 in the presence of Mr. Juma Nassoro, learned counsel for the Applicants, Mr. Thomas Mahushi, learned State Attorney for the Respondents via virtual Court and Mariam Kivuma, Court Clerk; is hereby certified as a true copy of the original. P. S. FIKIRINI JUSTICE OF APPEAL O.H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL 17