Sheikha Abdallah Said vs KCB Bank Tanzania Limited & Others (Civil Application No. 183 of 2025) [2025] TZCA 940 (2 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PODOMA CIVIL APPLICATION NO. 183 OF 2025 SHEIKHA ABDALLAH S A ID ............................................................ APPLICANT VERSUS KCB BANK TANZANIA LIMITED ............................................1 st RESPONDENT JUMA MEHTA KIBONDEI....................................................... 2 nd RESPONDENT AMALY INVESTMENT COMPANY LTD . .................................. 3 rd RESPONDENT BID CITY AUCTION & ESTATE SALES . .................................. 4™ RESPONDENT (Application for Extension of time to file Revision against the deed of settlement and decree of the High Court of Tanzania Land Division) fV. L. Makani. J.l dated the 21st day October, 2021 in Land Case No. 175 of 2020 RULLING MAIGE. 3.A.: I am, in this application, called upon to determine whether sufficient , cause in terms of rule 10 of the Tanzania Court of Appeal Rules, 2009 exists to justify grant of extension of time to apply for revision against the order of the High Court of Tanzania Land Division (the High Court) dated 21st October, 2021 recording a deed of settlement between the first respondent on the one hand and the second and third respondents on the other. i

The applicant has brought the application as the spouse of the second respondent on the basis that the settlement order in question affects the matrimonial properties herein mentioned which was mortgaged without her consent and a settlement deed pertaining thereto entered and recorded in a proceeding she was not a party in and thereby denying her a right to be heard. She has, in substantiation of her application, deposed an affidavit which has been opposed by the affidavits in reply deposed on the first and fourth respondents' behalf. Briefly, the facts which culminated in the commencement of this application are stated hereunder. By a facility letter dated 30th May, 2019, the first respondent extended a loan to the third respondent which was secured by among others; mortgages on landed properties at Plot No 140/D at Shariff Shamba area within the District of Ilala in Dar Es Salaam region with certificate of title No. 101225, Plot No. 2188D at Buyuni area within the District of Ilala in Dar Es Salaam region with certificate of title No. 145130 and plot No. 104D at Shariff Shamba within the District and Region of Dar Es Salaam with certificate of title No. 82950 registered in the name of the second respondent, together "the suit properties".

Having been served with a notice of default in relation to the above mortgages, the second and third respondents commenced, at the High Court Land Division (the High Court) Land Case No. 175 of 2020 for declaration that the intended realization of the mortgages was premature and for a grant of perpetual injunction to restrain the first respondent from realizing the same, among others. The suit was contested by the first respondent who also raised a counterclaim for payment of the outstanding loan of TZS 1,183,026,467.89 and declaration that she was entitled to realize the securities. Before the trial could be conducted, however, the said respondents executed a deed of settlement which was, on 21st October, 2021, recorded to read as part of the decree of the High Court. In the said deed of settlement, the second and third respondents acknowledged the outstanding loan as aforementioned and undertook to repay the same within 144 months from the date thereof in the installments stated therein. It was further agreed between the parties and the trial court so recorded that, in the event of default in terms of the deed, the first respondent would be entitled to realize the mortgages without any further order. The second and third respondents, it would appear, defaulted in terms of the deed of settlement. As a result, the applicant alleges, she

was, on 9th May, 2024, served with a notice of sale. She, in reaction, filed, at the High Court, Land Case No. 11944 of 2024 which was, on 24th July, 2024, dismissed for being res judicata to the settlement decree in question. Aggrieved, the applicant lodged a notice of appeal and applied for a record of proceedings for the purpose of the intended appeal. Subsequently, she was advised that an appeal was not the appropriate way forward but revision. Before she could file the intended application, the applicant was, on 17th January, 2025, served with another notice of sale and a short while after, she lodged the current application, As per the notice of motion and affidavit, the applicant factually justifies the delay on account that she was not aware of both the execution of the mortgages and the proceedings in which the deed of settlement in question was recorded. She claims to become aware of the same on 14th January, 2015 when she was served with a notice of sale in execution of the order while the current application was filed on 29th January, 2015. On top of that, the application is premised on illegality on account that both the mortgage deeds and the settlement agreements were executed and recorded without her being involved despite that as a spouse, and the properties being matrimonial, her consent was, for any valid mortgage, inevitable.

; In the affidavits in reply filed in their behalf, the first and fourth respondents dispute that the applicants became aware of the order in January, 2021 and claim that she became aware of the same on 24th July, 2024 when her suit was dismissed for being res judicata to the order recording settlement. On illegality, the first and fourth respondents over that it was not apparent of the face of the record as the suit properties are registered in the sole names of the second respondent. It may perhaps be relevant to note the second and third respondents did not file any affidavit in reply and, at the hearing, they expressly conceded to the application. The hearing of the application was conducted by way of video mediated interaction with Mr. Mluge Karoli Fabian, learned advocate who represented the applicant accessing the Court from his offices in Dar es Salaam while his learned friend advocate Philip Kalinga who represented the first and fourth respondents, accessing the Court from his offices in Dar Es Salaam. Conversely, the second respondent in his individual capacity as well as in his representative capacity as the director of the third respondent, accessed the Court while at the High Court of Tanzania at Dar Es Salaam. Despite the minor disconnections and visibility challenges, the interaction was reasonably effective.

In his oral arguments in support of the application, Mr. Fabian fully adopted his written submissions and urged me to find that sufficient cause has been established and grant the application accordingly, with costs. In the similar way, Mr. Kalinga fully adopted his written submissions and contended that the application should be dismissed with costs because sufficient cause has not been demonstrated. Let me start by determining existence or non-existence of sufficient cause on basis of factual justification of the delay. Parties, it would appear, are not in dispute that the applicant was not directly involved in the execution and recording of the deed of the settlement, the basis of the intended application. The dispute, it would appear, is when did the applicant become aware of the same. While the applicant asserts that it was on 14th January, 2025 when she was served with a notice of execution, the 1st and 4th respondents claim that it was on 24th July, 2024 when the applicant's suit at the High Court was dismissed. In my view, as the dismissal of the applicant's suit on 24th July, 2024 was on account of being res judicata to the order recording settlement, it goes without saying that, it was at that particular moment in time that the applicant became aware of the existence of the order recording the settlement. As a matter of principle, therefore, she was obliged, which she did not,

to account by way of affidavit, for each day of delay from that particular time to 28th January, 2025 when the current application was filed, being a period of hardly 6 months. See for instance, Elius Mwakalinga v. Domina Kagaruki and 5 Others (Civil Application No. 120/17 of 2018) [2019] TZCA 650, TANZLII. Much as the affidavit suggests that the applicant filed, on 28th August, 2024, a notice of appeal against the said decision and on unknown date advised that it was not an appropriate cause of action, nothing is said on what the applicant did from that particular moment in time to 14 January, 2025 when she was allegedly served with a notice of execution. This is a period of more than four months. On that account, therefore, I am unable to agree with Mr. Fabian that the applicant has accounted for every day of the delay as to be entitled an extension of time. Mr. Fabian has also submitted, correctly in my view that, an extension of time can solely be granted on the ground of illegality. This is as per the principle in Secretary , Ministry of Defence and National Service v. Devrambia (1992) TLR 185 which have been reinstated, in among other subsequent decisions, Kalunga & Company Advocates LTD v. Principal National Bank of Commerce LTD (2006) TLR 235 and Lyamuya Construction Company Limited v. Board of

registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) Mr. Fabian submits, therefore that, as the suit properties are matrimonial, creating mortgages thereon without the spousal consent of the applicant raises an issue of illegality sufficient to justify an extension of time within the principle in the above cited authorities. He submitted further that, as the applicant had in law interest on the suit properties for the reason of being the second respondent's spouse, the deed of settlement which affects her interest thereon was executed and recorded into judgment in total denial of her right to be heard. In rebuttal, Mr, Kalinga has submitted that since the suit properties are solely registered in the name of the second respondent, the illegality if any, is not apparent on the face of the record as per the principle in Valambia case (supra) as further clarified in Lyamuya case (supra) in that; it cannot be discovered without long-drawn argument or process. I have examined the affidavits both for and against the motion in line with the rival submissions and the authorities cited. I agree with Mr. Kalinga that, in accordance with the principle in Valambia case, illegality would suffice as a ground for extension of time if it was apparent on the face of the record. In Lyamuya case, the Court refused to grant

extension of time on illegality on account that; while in Valambia case the illegality complained of was that the High Court had issued agarnish order against the Government without hearing the applicant which was an apparent denial of a right to be heard while in the said case, the alleged illegality was based on controversial factual issue as to when did the cause of action accrue which could not be determined without a long drawn process. In particular, the Court observed that: "Certainly, the two paragraphs, cannot be reconciled, and it would take a long drawn out process to get to the bottom o f this, and decipher '"the point o f law " or "illegality"in the decision that is sought to be challenged. I must therefore conclude that the applicant has failed to convince me that there is a point o f law o f sufficient importance, involved in the intended appeal, to warrant extension o f tim e" In this case, though the applicant is in possession of a marriage certificate signifying that she was the 2n d respondent spouse when the mortgages were created and the order recording settlement entered into, the suit properties are solely recorded in the name of the second respondent. It follows, therefore that, unless I revisit the pleadings and its annexures in the respective proceedings (which are not part of the 9

application) together with the marriage certificate accompanied with the current application, an exercise which would involve a long drawn out process, I cannot decipher the point of illegality complained of. In my opinion, therefore, the applicant has not succeeded in establishing existence an apparent point of illegality of sufficient importance involved in the intended application for revision. For the fore going reasons, therefore, I find the application without merit and it is accordingly dismissed. In the circumstances of this case, however, I will not give an order as to costs. DATED at DODOMA this 1st day of September, 2025. I.J. MAIGE JUSTICE OF APPEAL The Ruling delivered this 2n d day of September, 2025 via Virtual Conference in the presence of Mr. Philip Irungu, learned counsel for the 1st and 4th respondents who took brief for Mr. Mluge Kalori, learned counsel for the applicant and in the absence of the 2n d and 3rd respondents though duly notified and Mr. John Banene Court Clerk, is hereby certified as a true copy of the original.