Swalehe Juma Sangawe & Another vs Hussein Ally Sangawe (Civil Application No. 1374 of 2025) [2025] TZCA 925 (3 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1374 OF 2025 SWALEHE JUMA SANGAWE (Suing as Administrator of the Estate of the Late Juma Swalehe Sangawe) . HUSSEIN SALEHE SANGAWE .... . ....................... 1 st APPLICANT 2 nd APPLICANT VERSUS HUSSEIN ALLY SANGAWE (Suing as Administrator of the Estate of the Late Salehe Mlashi Sangawe, also known as Swalehe Mrashio) .... . ............... ........... RESPONDENT (Application for Extension of Time to file an Application for Stay of Execution of the Judgment and Decree of the High Court of Tanzania at Moshi) (Kilimi. J / > 26th August & 3rd September, 2025 FIKIRINL J. A.: This is a ruling on an application for an extension of time, made by way of a notice of motion under Rule 10 of the Court of Appeal Rules, 2009 (the Rules). Initially, the Applicants lodged an application for a stay Dated 20th day of March, 2025 in Civil Appeal No. 10 of 2023 RULING 1

of execution, which was struck out on 10th July, 2025, for failing to attach proof of service of the notice of appeal, duly filed on 22n d May, 2025. They served on the Respondent on 30th May, 2025, hence the present application for extension of time. The application is supported by the joint affidavit of the Applicants and that of Mr. Moses John Basila, learned advocate, representing the Applicants. The sole ground in the notice of motion is to seek a grant of an extension of time, to permit the Applicants to refile their application for a stay of execution, which was previously struck out. In their joint affidavit, the Applicants averred that the omission to attach a copy of proof of service of the notice of appeal on the Respondent was inadvertent and not due to negligence, indifference or delay on their part. Annexed to the affidavit in support was a copy of the proof of the service, which was annexed and marked "B." Likewise, Mr. Basila, deponed an affidavit augmenting the Applicants' affidavit, stating that the omission was not deliberate. Admitting their oversight, the Applicants immediately filed the present application after the Court's order striking out their application for a stay of execution, seeking an extension of time that would permit them to lodge their application for a stay of execution. 2

The Respondent, although he did not file an affidavit in reply contesting the application, argued the application on the set date for hearing through Mr. Charles Mwanganyi, learned advocate, who held brief for Mr. Philemon Shio, another learned advocate, with instructions to proceed. During the hearing, Mr. Basila was brief and to the point, that the application for a stay of execution was struck out because the proof of service of the notice of appeal had been mistakenly omitted. However, within six (6) days that followed, the present application was lodged electronically on 15th July, 2025, and physically on 16th July, 2025. According to Mr. Basila, the delay was technical and urged the Court to grant the application, believing that the Respondent would not be prejudiced if it were granted. Mr. Mwanganyi was equally brief, only addressing the legal aspect. His first premise was to challenge the assertion that the delay was technical. Disputing the allegation that the delay was technical, the learned Counsel, contended that the Applicants had not stated when they were served with the notice of execution, from which days could be counted. 3

Opposing the grant of the extension of time sought, the learned counsel, argued that even if the time would start to run from 10th July, 2025, when the initial application was struck out, still the Applicants have not been able to account for each day of the delay. What the Applicants' counsel had submitted is not supported by the affidavits filed. The Applicants' Counsel’s submission is akin to that from the bar, which should not be relied on. He concluded his submission, urging the Court to decline the grant of the application, as the Applicants had not met the legal requirement that each day of the delay must be accounted for. He implored the Court to dismiss the application with costs. Mr. Basila, in his brief rejoinder, dismissed the submission that the Applicants had to state when the execution notice was served on them, contending that the issue was premature and, besides, that was not what was before the Court. On the accounting for each day of the delay, the learned Counsel referred the Court to paragraph 8 of his affidavit and, guided by its previous decisions, some of which had been annexed to the Applicants' written submissions filed, beseeched the Court to find that he accounted for each day of the delay. Concluding, he reiterated his prayer that the application be granted as requested. 4

Having heard the rival arguments, the issue is whether the application is meritorious or otherwise. Before examining the merits of this application, I think it is relevant to go through the principles governing applications for extension of time, which in this Court are governed by Rule 10 of the Rules. There is plethora of decisions on the subject some of which had been cited, by Mr. Basila, namely: Wilbard Mathew Senga {Administrator o f the Estate o f the late Mathew Orestes Senga) v. Mkwega George Mathew Senga & Another, (Civil Application No. 508/01 of 2020) [2023] TZCA 241 (10 May 2023; TANZLII); Lyamuya Construction Company Limited v. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4 (3r d October, 2011; TANZLII) ; Hamisi Mohamed (As the Administrator o f the Estates o f the late Risasi Ngawe) v. Mtumwa Moshi ( As the Administratrix o f the Estates o f the late Moshi Abdailah) (Civil Application No. 407/17 of 2019) [2020] TZCA 13 (21 February 2020; TANZLII) and Yara Tanzania Limited v. DB Shapriya & Co. Limited, (Civil Application No. 498/16 of 2016) [2017] TZCA 1340 (12 June 2017; TANZLII). It is a trite law that courts 5

can exercise powers to grant or refuse an application for an extension of time within which to take some judicial steps. However, such powers are discretionary and are to be exercised judiciously. This includes making logically sound decisions, based on the rules of law. In the present application, there is no dispute that the application for a stay of execution was struck out on 10th July, 2025, for failing to include a copy of proof of service of the notice of appeal. The parties are also not in dispute that the Applicants lodged the present application on 15th July, 2025, electronically and 16th July, 2025, physically. Their point of divergence is that the Applicants consider the delay as technical, and that they have been able to account for each day of the delay. The Respondent, on the contrary, disputes that. Mr. Mwanganyi contends that the Applicants have not been able to account for each day of the delay. Additionally, they have failed to specify when the notice of execution was served on them. Let me start with the last part of the Respondent's concern. As rightly argued by Mr. Basila, what is before the Court is an application for extension of time and not a stay of execution, where there is an importance of knowing when the notice of execution was served. This is 6

important as it assists in determining compliance with Rule 11 (4) of the Rules, which is not the case under scrutiny. This issue is thus misplaced. On whether the Applicants accounted for each day of the delay, it should not detain me long. Starting from the 10th July, 2025, after the application for execution was struck out, immediately thereafter, the Applicants lodged the present application. Mr. Basila's affidavit in support of the application has clearly enumerated what transpired after the striking out order. I will let the contents of paragraph 8 of the affidavit speak for itself:- "That, after receiving instruction from Applicants to fife this application ; on 11th Juiy, 2025 I started research , and used the weekend o f 12th July, 2025 for research and drafting, 13th July, 2025 for completing drafting and proofreading, and Monday l4 h o f Juiy, 2025 collecting the impugned Court order, final proof reading, signing and attestation, for the purpose o f filing his application without unreasonable delay." From the sequence of events, the delayed period between 10th July and 15th or 16th July 2025, when the present application was filed, falls literally within the ambit of technical delay. By technical delay, it means the party was in court corridors pursuing another matter, 7

regardless of whether the remedy sought was wrong or right. There are also occasions when a party would have inadvertently omitted a document, the consequence of which is that the application before the court would suffer the wrath of being struck out. In most cases, such a party might find himself out of time take certain action and hence required to seek an extension of time to bring him back on track. A similar situation befell the present application. The Applicants have credibly explained the defect in the struck-out application as an inadvertent omission arising from a communication gap between them and their advocate. The proof of service existed at the time of filing but was not attached due to the advocate's unawareness that personal service had been effected after the Respondent's advocate declined. Such human error, absent malice or negligence, constitutes sufficient cause. Immediately after the struck-out order, the Applicants preferred the present application. This demonstrates their diligence, which is a sufficient cause for an extension of time. I find the delay in the present application is well explained and the six (6) days delayed are reasonable, as they were spent preparing and filing the current application. This is in tandem with the decision in Patrick Magologozi 8

Mongella v. The Board of the Trustees of the Public Service Pensions Fund, (Civil Application No. 199/18 of 2018) [2019] T7CA 667 (18 June 2019; TANZLII), where 12 days were found to be reasonable in preparation and filing of the application for extension of time upon receipt of the necessary documents in pursuit of intended revision. I do not doubt, Mr. Basila's averment that he started preparation even before being furnished with the order. The Court order was availed to him on 14th July, 2025. On 15th July, 2025, he lodged the application electronically and on 16th Juiy, 2025, lodged it physically as shown by the receipt Court stamp exhibited on the front page of the record. The Respondent has not controverted this averment. For the reasons stated above, I am satisfied that the Applicants have established sufficient cause by adequately accounting for each day of delay, which I find was not inordinate, justifying the grant of the application. Furthermore, I am of the considered view that granting this application will not occasion any prejudice to the Respondent. 9

Accordingly, I grant the application for extension of time as prayed. The Applicants are to file their application for stay of execution within fourteen (14) days from the date of this Ruling. DATED at DODOMA this 2n d day of September, 2025. P. S. FIKIRINI JUSTICE OF APPEAL Ruling delivered this 3r d day of September, 2025 in the presence of Mr. Moses Basila learned counsel for the Applicants, Mr. Philemon Shio, learned counsel for the Respondent via virtual Court and Mariam Kivuma, Court Clerk; is hereby certified as a true copy of the original. 0. H. K IN G W Etr^ DEPUTY REGISTRAR COURT OF APPEAL