Edwine Thadeyo Oyor vs Tausi John Oyor (Civil Application No. 404/17 of 2024) [2025] TZCA 913 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 404/17 OF 2024 EDWIN E THADEYO O YOR ................................................... APPLICANT VERSUS TAUSI JOHN OYOR ...... ............ ................................ RESPONDENT (An Application for extension of time to Appeal against the decision of the High Court of Tanzania (land Division) at Dar es Salaam) (Kamuzola. Ext. Jurisdiction) dated the 22n d day of December, 2020 in Extended Land Appeal no. 5 of 2019 RULING 25th & 29th August, 2025 MGONYA. 3.A.: The applicant, Edwine Thadeyo Oyor has filed this application by way of a notice of motion made under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant craves an order of this Court for an extension of time within which to file an appeal. The application is supported by an affidavit sworn by the applicant. In his affidavit, the applicant deposed that, being aggrieved by the decision of the High Court which upheld the District Land and Housing Tribunal decision, he initiated the appeal process by filing a notice of appeal on 28th December, 2020. He also filed an application i

for leave which was registered as Application No. 748/2019. That, the application for leave was dismissed for lack of merits. Hence, he filed an application for extension of time to file an application for leave as a second bite, which was registered as Civil Application No. 632/17 of 2023. That the said application is still pending before the Court. He further deponed that, the requirement for leave is no longer legal requirement and he became aware of that position on 30th May, 2024. He further deponed that, the delay to file an appeal was due to the process of obtaining a leave. In rebuttal, the respondent filed an affidavit in reply disputing the application. She argued that, the prayer in the applicant's Notice of Motion and Affidavit thereof, is wanting and devoid of merit. According to the respondent, the applicant's application is misleading and baseless as the applicant misuses the powers of the Courts by delaying the execution process. At the hearing of the application which was conducted by virtual Court, the applicant was represented by Mr. Peter Nyangi, learned counsel, whereas Mr. Mluge Karoli learned advocate, appeared for the respondent.

When invited, Mr. Nyangi adopted the affidavit in support of the application. He went on to submit that, all factors stipulated in Catherine Bura Ingi v. Lucila Kwaang Paresso (Civil Application No. 444/ 02/2024) [2024] TZCA 1148 (1 November 2024; TanzLII) which includes; the reason for the delay, the length of delay, account for the delay and illegality has been explained in this application. That, on the reason for the delay, the applicant was prevented to file an appeal in respect of Extended Land Appeal No. 5 of 2019 due to the reason that, by that time there was a need to obtain a leave to appeal. He stressed that, paragraphs 2n d , 3rd ,4th ,5th ,6th , and 7th of the affidavit explain the reasons for the delay. On a length of delay, the learned counsel submitted that, the applicant was aware of the change of law on 30th May 2024, and he filed the instant application on 13th June, 2024, almost 14 days since he became aware. According to Mr. Nyangi, there is no inordinate delay as deponed under paragraphs 8th , 9th and 11th of the applicant's affidavit. Regarding to the third point which is to account for each day of delay, the learned counsel reiterated that, all the time the applicant was seeking leave to file an appeal. He submitted that, he became aware of the changes on 30th May, 2024.

As far as the point of illegality is concerned, the applicant's counsel submitted that, the appellate court failed to analyze the evidence tendered before the Court in order to reach to a fair decision. By referring to the case of Catherine Bura Ingi (supra), he prayed that the application be granted. In response, Mr. Karoli having adopted the affidavit in reply, at the outset he declared that the respondent objects the application. He argued that, the extension of time is within the Court's discretion. To support his stance, the case of Kalunga & Co. Advocate Ltd v. NBC Ltd 2006, TLR 235, was referred to. Mr. Karoli argued further that, the applicant did not explain all the factors for the Court to grant the application. He stated that, on the issue of leave to appeal to the Court, the applicant did not disclose that the first application for leave was denied. He argued that, the applicant was late to file the application for leave for a second bite hence, the same was rejected. According to Mr. Karoli, it was his delay to file an application which led him to be caught with the new law. It was his argument that, had the application brought within time, the applicant could not be caught with time limit He stressed that, the delay was due to the applicant's negligence.

Responding to the assertion that, the applicant became aware of the new law on 30/5/2024, Mr. Karoli submitted that, the assertion is misleading since all the time the applicant was represented by an advocate. Therefore, he was supposed to file an application for extension of time immediately after the changes. He urged the application be denied as the applicant intends to delay the execution. In regard to illegality, starting with the applicant's claim that the tower court failed to analyze the evidence. It was the learned counsel stance that, this is not illegality. He contended that, the applicant has not demonstrated any point of illegality in law. The learned counsel contended that, what was deponed by the applicant emanated from negligence. He therefore urged the Court to dismiss the application. Rejoining, Mr. Nyangi submitted that, his client filed a notice of appeal immediately and he followed the procedures. That, it is not in dispute that, there was a pending application for filing leave as deponed under paragraph 6 of the affidavit. On a length of delay, the counsel submitted that, the applicant's advocate had died, hence the applicant had no legal representative although that fact was not included in the affidavit. He further

submitted that, the applicant has a right to appeal and they don't have any intension to delay the execution. Premising on what he submitted, he implored the application to be granted. Having carefully considered the submissions for and against the application, I find the pertinent issue is whether there is sufficient cause to warrant extension of time. It is trite Law that, the Court has discretionary power to grant or refuse an application for extension of time. That, the discretion vested in the Court is not unfettered as the same can be exercised after sufficient reason has been shown. See for instance- Attorney General v. Tanzania Ports Authority & Another (Civil Application No. 87 of 2016) [2016] TZCA 897 (12 October 2016; TanzLII) and AM Steel & Iron Mills Limited v. Illiyun Fatehali Nazareli (Civil Application No. 560/01 of 2021) [2024] TZCA 653 (24 July 2024; TanzLII). It is equally now settled that, the decision whether or not to extend the time, the Court has to consider the following: One, the reason for the delay; two, the length of delay; three the applicant must account for all delayed days; four, the delay must not be inordinate; five, the applicant must demonstrate diligence, not apathy,

negligence, or sloppiness, in pursuing the intended action; and six, the presence of other reasons, such as an illegality in the decision sought to be challenged. See for instance Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application No. 2 of 2010) [2011] TZCA 4 (3 October 2011; TanzLII). In the instant application, the sufficient reason relied on by the applicant is that, he failed to lodge an appeal within time since he had to acquire a leave before filing an appeal. Under paragraphs 5 and 6 of the affidavits, the applicant deponed that, initially he filed an application for leave which was rejected for being without merit. There after he intended to file an application for leave before the Court as a second bite, but the application was rejected for being out of time. Still intending to pursue the appeal, the applicant filed an application for extension of time to apply for leave before the Court. Unfortunately, while the application is still pending, he came to know that, leave to appeal is no longer the requirement of the law. However, the time to file an appeal was lapsed hence, he filed the instant application. From the reason indicated above, it is not in dispute that, prosecuting an application for a leave may suffice to be a good reason 7

for the delay. However, the nagging issue is whether, there is plausible explanation on the delay from the date the requirement for leave was abolished. It is the wake of the amendment of section 5 of the Appellate Jurisdiction Act, Cap. 141 (the AJA) which was brought by section 10 and 47(b) of the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 2023, which came into effect on 1s t December, 2023 which abolished the requirement for leave. Nonetheless, the instant application was filed on 13/6/2024, almost after six months from those changes. In his affidavit, the applicant deponed that, he became aware of the changes of the law on 30/5/2024. As a result, he filed this application on 13/6/2024. Attacking assertion on the ignorance of the law, the respondent's counsel contended that, all the time the applicant had legal service of the learned counsel who knew or ought to know about changes of the law. In his view, that was negligence which is not a good cause for granting the application. I agree with Mr. Karoli that, the fact that the applicant was not aware of the changes of the law does not constitute a good reason for extension of time. It is evidenced from the application for extension of time which was still pending before the court that, Kazi Attorneys was

engaged by the applicant. Nothing has been deposed by the applicant in his affidavit on the death of his counsel as among the reasons for the delay as submitted by Mr. Nyangi. It is settled that ignorance of the law does not constitute a good ground for enlarging time. See for instance the cases of Jubilee Insurance Company (T) Limited v. Mohamed Sameer Khan (Civil Application No. 439/01 of 2020) [2022] TZCA 623 (12 October 2022; TanzLII), and Omari R. Ibrahim v. Ndege Commercial Services Ltd, Civil Application No. 83/01 of 2020, which was quoted with approval in Elius A. Mwakalinga v, Domina Kagaruki & Others (Civil Application No. 456/01 of 2024) [2024] TZCA 1052 (5 November 2024; TanzLII). In the latter case, it was held that: "It should be stated once that, neither ignorance of the law nor counsel's mistake constitutes good cause in terms o f Rule 10 o f the Rules" Being guided with the above position, I hasten to hold that the applicant's ignorance on the changes of the law does not constitute sufficient reason for extending time.

The applicant had also raised a ground of illegality of the decision. It is now well settled that, when illegality as a ground of extension is established, the Court has a discretion to grant the order sought. See- Sirili Baha Ammo v. Andrea Yakobo, Civil Application No. 394/02 of 2020 and Tanzania Breweries v. Herman Bildad Minja, Civil Application No. 11/18 of 2019 and Permanent Secretary Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R 182. However, the point of illegality is not unfettered as for the alleged illegality to qualify, the same must be apparent on the face of record and must constitute sufficient reason for extension of time. See-Ngao Godwin Losero v. Julius Mwarabu (Civil Application No. 10 of 2015) [2016] TZCA 2482 (24 May 2016; TanzLII); Charles Marko Naibala v. Lilian Marko Naibala (Civil Application No. 119/05 of 2024) [2024] TZCA 468 (14 June 2024; TanzLII) and Lyamuya Construction (supra). In Lyamuya's case it was stated that: It cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a generai ruie that every appiicant who demonstrate that his intended appeal raises points o f law should as o f right, be granted 10

extension o f time if he applies for one. The Court there emphasized that such point o f law, must be that "of sufficient importance" and I would add that it must also be apparent on the face of the record, such as the question of jurisdiction; not one that would be discovered by a long-drawn argument or process./f Expounding on the alleged illegality, the applicant deponed under paragraph 10 of the supporting affidavit that: "That the Judgment of the High Court (Land Division) in extended Appeal No. 5 o f 2019 and Land Application No. 121 o f 2013 are problematic in that the Court failed to analyse the tendered evidence that, Applicant is lawful owner o f the suit Land". Reading from the above excerpt, the question now is whether the above qualifies to be an illegality. It is my firm view that, the alleged illegality does not qualify to be a point of law apparent on the face of record. The reason is simple that, reading the quoted paragraph of the affidavit, there is no any point of law apparent of the face of it. What has been deponed under paragraph 10 of the affidavit sounds to be a ground of appeal, which requires re- assessment of the evidence. li

For the foregoing reasons, I have come to the conclusion that this application has no merit. Consequently, is hereby dismissed. Each party to bear their own costs. DATED at DODOMA 29ththis day of August, 2025. L. E. MGONYA JUSTICE OF APPEAL Ruling delivered this 29th day of August, 2025 in the presence of Mr. Peter Nyangi, learned counsel for the Applicant, Mr. Mluge Karoli, learned counsel for the Respondent via virtual Court and Shaban Kanyai, CourLQerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 12