Augustine Ngimilanga vs Ramadhan Rashid Kihuka & Others (Civil Application No. 1601 of 2024) [2025] TZCA 905 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1601 OF 2024 AUGUSTINE NGIMILANGA ......................................................... APPLICANT VERSUS RAMADHAN RASHID KIHUKA ............................................ 1 st RESPONDENT THE PERMANENT SECRETARY MINISTRY OF NATURAL RESOURCES AND TOURISM ........ . 2 nd RESPONDENT THE ATTORNEY GENERAL ..................... . ........................... 3 rd RESPONDENT (Application for extension of time (second bite) to file Notice of Appeal out of time against the judgment and Decree of the High Court of Tanzania Land Division, at Dar es Salaam) (Mqetta, 3,) dated the 14thday of April, 2021 in Land Case No. 51 of 2016 RULING 25th & 29th August, 2025 MGEYEKWA. J.A.: The applicant, Augustine Ngimilanga has brought this application against the respondents, Ramadhani Rashid Kihuka, Ministry of Natural Resources and Tourism, and the Attorney General, seeking extension of time to file a notice of appeal against the judgment and Decree of the High Court of Tanzania Land Division dated 14th April, 2021 in Land Case No. 51 of 2016. The application is brought by way of Notice of Motion under rule 45A (1) (a) and Rule 4 (2) (b) of the Tanzania Court of Appeal Rules, 2009 (the

Rules), and is supported by an affidavit sworn by the applicant himseif. In response, the first respondent filed an affidavit in reply sworn by Ramadhani Rashid Kihuka, resisting the application. The second and third respondents neither filed a counter affidavit nor opposed the application. Essentially, the first respondent contests the application as being devoid of merit. In addition, through his counsel, the first respondent raised a Notice of Preliminary Objection comprising four points of law, of which the following two were pressed upon the Court:

1. That, the application for extension of time to We a Notice ofAppeal as 2n d bite is bad in iaw for being in contradiction with Ruie 45A(l)(a) of the Court of Appeai Rules o f1979.
2. That the following decision ofMisc. LandApplication No.22357of2024, which the High Court of Tanzania (Land Division) Dar es Salaam presided over by T. N. Mwenegoha, 3. sustained the Preliminary Objection to the effect that the application for extension of time to file notice of appeal was incompetent and the same was struck out Therefore, the applicant should have taken the necessary legal steps and not lodged the instant application in this Honourable Court.

At the hearing of the application, Mr. Rugemeleza Nshala, learned counsel appeared for the applicant, while Mr. Agustine Kusalika, learned counsel, appeared for the first respondent. Mr. Thomas Mahushi, learned State Attorney represented the second and third respondents. As is the established practice, the Court was enjoined to address the preliminary objection before delving into the merits of the substantive application. Arguing strenuously, Mr. Kusalika submitted that the present application is misconceived, as the applicant had previously filed Misc. Land Application No. 22357 of 2024 before the High Court (Land Division), which was struck out for being incompetent by Hon. Mwenegoha, J. He argued that since that application was not determined on merits, it cannot be said to have been refused within the meaning of rule 45A (1) of the Rules. According to him, rule 45A (1) (a) of the Rules permits a party to approach this Court for a second bite only where the High Court has refused to extend time upon determining the matter on merit. As no such refusal occurred in the instant case, he contended that the application is incompetent. To bolster his submissions, he relied on the decisions in Bank M Tanzania Ltd v. Enock Mwakyusa, Civil Application No. 520 of 2017 [2018] TZCA 291 (TanzLII),

and MZA RTC Trading Co. Ltd v. Export Trading Co. Ltd, Civil Application No. 12 of 2015 [2016] TZCA 12 (TanzLII). In his reply, Mr. Nshala opposed the preliminary objections. Relying on Jireys Nestory Mutelemwa v. Ngorongoro Conservation Authority, Civil Application No. 154 of 2016 [2016] TZCA 9 (TanzLII), and Bulyanhulu Gold Mine Limited & 2 Others v. Petrollube (T) Limited & Another, Civil Application No. 364/16 of 2017 (unreported), he submitted that this Court and the High Court enjoy concurrent jurisdiction in determining such applications, and that the second bite application before this Court is predicated on the same set of facts presented to the High Court. He further cited Hawa Mashaka v. Mtami Maftah, Civil Application No. 393/13 of 2023 [2023] TZCA 17934 (TanzLII). He urged the Court to dismiss the preliminary objection and proceed to determine the application on merit. In a brief rejoinder, Mr. Kusalika reiterated his earlier position, distinguishing the authorities relied upon by the applicant's counsel. He argued that the cited decisions are inapplicable in the present case, since the applications in those cases were determined on merit and subsequently refused, unlike the instant case, where the application before the High Court was struck out for incompetence.

I have considered the rival arguments presented by learned counsel for the parties. The starting point in addressing this issue is rule 45A (1) of the Rules which provides: 45A.-(1) Where an application for extension of time to:~ (a)iodge a notice of appeal; (b)appiy for leave to appeal; or (c) apply for a certificate on a point ofiaw, is refused by the High Court, the applicant may within fourteen days of such decision apply to the Court for extension of time. The central issue for determination is whether the decision of the High Court to strike out Misc. Land Application No. 22357 of 2014 amounts to a refusal within the meaning of Rule 45A (1) of the Rules. The law is settled. When an application is struck out, it signifies that the court lacked jurisdiction to entertain it as what was before the court was abortive and not properly constituted application at all. See the case of Ngoni Matengo Cooperative Marketing Union Ltd v. Ali Mohamed Osman [1959] E.A. 577. In the present case, the High Court struck out Misc. Land Application No. 22357 of 2014 for being incompetent. The effect of that order is that the High Court was not in a position to determine the said application, as it was

not properly before it. That being so, there is no basis upon which the present application can be determined by this Court under the rubric of a second bite as envisaged under rule 45A (1) of the Rules. With respect, I am unable to accept the contention advanced by Mr. Nshala that the striking out of the Misc. Land Application No. 22357 of 2014 constitutes a refusal within the contemplation of Rule 45A (1) of the Rules. As defined in Black's Law Dictionary, 8th Edition at page 1307, the term refusal connotes "the denial or rejection of something offered or demanded." Implicit in that definition is the assumption that the matter was properly before the court and that the court had occasion to consider and determine it on its merits. That is not the case in the present matter. The record speaks for itself. The High Court struck out the application for being incompetent. It did not consider the substance of the application nor make a determination thereon. That being so, the application was never refused within the contemplation of Rule 45A (1) of the Rules. The counsel's submission equating a striking out with a refusal is, with respect, misconceived. Turning to the authorities cited by Mr. Nshala in support of his proposition on second bite applications. With due respect, I find those decisions distinguishable. In all of them, the applications in the High Court

were heard and determined on their merits, and it was upon refusal that the applicants proceeded to this Court under Rule 45A (1) of the Rules. The situation before the Court is materially different. As mentioned earlier, the application in question was struck out at a preliminary stage and not determined on merit. That distinction alone renders the cited authorities inapplicable. In the result, I am satisfied that the preliminary objections raised are meritorious. The application before the Court is incompetent. Accordingly, the application is hereby struck out with costs. It is so ordered. DATED at DODOMA this 29th day of August, 2025. The Ruling delivered this 29th day of August, 2025 in the presence of Mr. Rugemeleza Nshala, learned counsel for the Applicant, Mr. Agustine Kusalika, learned counsel, appeared for the 1s t respondent and in the absence of the 2n d and 3r d Respondents via virtual Court and Mr. Frank Ngaga, Court Clerk; i: ' , r‘ ' 1 " 'he original. A. Z. MGEYEKWA JUSTICE OF APPEAL W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL