Judith Johnson Mollel vs Innocent Raphael Tesha (Civil Application No. 713/01 of 2024) [2025] TZCA 915 (29 August 2025)

IN THE COURT OF APPEAL OF TANZAI{IA AT DODOMA crvrl APPLICATION NO, 713101 OF 2024 JUDITH JOHNSON MOLLEL ......,..,,.. ..,....,..,,, APPLICANT VERSUS INNOCENT RAOHAEL TESHA ,,,.,,,,. ,,,.,,,,,., RESPOI{DENT (An Application from the Judgment and Decree of the High Court (Temeke High Court- sub-registry (one stop judicial center) at Temeke) (Omari, J') dated the 13s day of Decembe\ 2023 in Pc. civil Appeal No. 23 of 2023 RULING 28th & 29fi August, 2025 MGONYA, J,A,: Judith Johnson Mollel, the applicant, is seeking extension of time to lodge a record of appeal and Memorandum of Appeal out of time against the decision of the High Court of Tanzania, in PC Civil Appeal No. 23 of 2023. The application is made pursuant to rule 10 of the Tanzania Couft of Appeal Rules, 2009 (the Rules). The same is supported by an affidavit deponed to by the applicant. Briefly, the background of this matter is to the effect that, the applicant was aggrieved wlth the decision of the District Court of

Temeke at the One Stop Centre in Matrimonial Appeal No. 76 of 2022. In a bid to challenge the said decision, the applicant filed an appeal before the High Court of Tanzania (Temeke High Court Sub- Registry) at Temeke. After hearing of the appeal, the appellate court upheld the trial court decision. Consequently, the appeal was dismissed. Still dissatisfied, the applicant intends to appeal to this Court against the decision of the appellate court. However, she was late to file a record and memorandum of appeal, hence this application. At the hearing of the application, the applicant appeared in person unrepresented via vitual coud from Dar es Salaam whereas, the respondent had the services of Mr. Godfrey Madin Silayo, learned advocate. Submitting in suppoft of the application, Ms. Mollel adopted the afFidavit and went on to submit that, she received a copy of judgment on Blll2025. Therefore, she prayed for enlargement of time, so that she can lodge a record of appeal and memorandum of appeal. In response. Mr. Silayo at the outset declared that, the respondent is contesting the application. He submitted that, the applicant has failed to demonstrate on what she was doing since

27 I 6 I 2024 the date of rul ing No. 0000 14873/2024 until 6 I 9 I 2024 when she filed the instant application. He contended that, the applicant did not account on delayed days of more than two months. To fottify his submission the cases of Ngao Godwin Losero v. Julius Mwarabu (Civil Application No. 10 of 2015) [2016] TZCA302 (18 October 2016; TanzLII) and Ramadhani ,. Kihwani v, Tazara (Civil Application No. 401 of 2018) [2019]

IZCA 171 (11 June 2019; TanzLII) were cited. He argued further that, the applicant failed to demonstrate all the conditions stipulated in Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011]

TZCA 4 (3 October 201; TanzLII), for the Couft to grant the application. Basing on what he submitted, Mr. Silayo urged me to dismiss the application as the applicant failed to demonstrate tangible reason for the delay. Rejoining, Ms. Mollel argued that, it was on 251712024 when she received the documents. That, on 281812024 the advocate was preparing the documents, and on 61912024, the instant application was filed before the Court. She finally stressed the prayer be granted' 3

Having considered the applicant's affidavit and submission made by the pafties, the main issue for determination is whether there is sufficient reason advanced by the applicant. Before dwelling on determination of the above issue, I find it apposite to restate the fundamental principle of the law that, in the application of this nature, whether to grant or refuse the application is entirely on the discretion of the Court. See for instance- Bank M T. Ltd v. Enock Mwakyusa (Civil Application No. 520 of 2017) IZ}LBITZCA 291 (25 October 2018; TanzLII) and Ngao Godwin Losero v. Julius Mwarabu (supra). Equally, rule 10 of the Rules provides that, the Court will exercise its discretion in favor of an applicant only upon showing good cause. What amounts to "good cause" has not been defined by the Rules. However, it is clear from the case laws that, "good cause" is dependent upon the facts obtaining in each particular case. This position has been taken by the Court in a number of its decision including the cases of Regional Manager, TANROADS Kagera v' Ruaha Concrete Company Limited, Clvll Application No. 96 of 2007, Tanga Cement Company Limited v. Jumanne D. Massanga and Another, Civil 4

Application No. 6 of 2001, Yusufu Same and another v. Hadija Yusufu, Civil Appeal No. 1 of 2002 and Vodacom Foundation v' Commissioner General (TRA), Civil Application No. L07120 of 20t7 (all unreported), to mention but a few. As alluded to earlier, the applicant is seeking for an order of extension of time to lodge a record of appeal and Memorandum of Appeal. In the affidavit in support of application she deponed under paragraphs 6, 7, 8 and 9 that, she was advised by her lawyer to apply for the court to issue her a Certiflcate on points of law. That, after lodging a Notice of Appel, she filed the first application which was application No. 4210 of 2024. However, the said application was struck out by the court (G.N. Bafthy J.) on technical grounds, with a leave to refile. The applicant deponed further that, she filed another application which was Misc, Civil application No. 14873 in compliance with the court order. That, while the said application was called for hearing, it was discovered that, it was not necessary to apply for a ceftificate. Unfortunately, the time had lapsed, hence this application. 5

Reading from the applicant's notice of motion and affidavit in support thereof, among the grounds stated in the Notice of Motion is that, the applicant had filed a Notice of Appeal within time' Thereafter, she went on to file softs of applications paving a way to her appeal, as illustrated above. Unfortunately, the said application ended being struck out for technical ground. In my firm view, after assesslng the circumstances peftaining into this application, I find the delay falls within technical delay rather than actual delay. I am guided by the decision made in Ali Abdallah Abdi v. Selemani Said Marshed (Civil Application No. 794117 of 2023) l2025lTZCA 570 (6 June 2025; TanzLII), where it was stated that: "With the foregoing history, I thinfi the kind of delay in this application is what this Court in Fortunatus Masha (supra) held that, a distindion ought to be drawn between those cases involving actual delay and those, as in this application, which involves technical delay. I note in this application tha, the applicant's notice to appeal to the Court was lodged the same day the impugned decision was delivered. But later in the course, the tune was changed from an appeal to a review and sorts of applications followed thereafter as alluded to above. I hasten, under the circumstance to agree

with Mr. Kilinba that the applicant's move be equated and treated on grounds of negligence." See also Bharya Engineering and Contracting Co. Ltd v. Hamoud Ahmed Nassor (Civil Application No. 342101 ot 2017) [2018] TZCA 962 (7 September 2018; TanzLII) and Zahara Kitindi & Another v. ,uma Swalehe & 9 Others (Civil Application No. 4105 of 20L7) l21tTlTZCA 196 (3 March 20fi; ranzLlt). Apart from the reason for delay, the appllcant was required to account for the period of delay. According to Mr. Silayo, she was supposed to account from 261712024, the date of Ruling No. 000014873 lo 61912024 when she filed the instant application. The applicant in paragraph 10 of her affidavit and in her brief rejoinder, she stated that, she was availed the documents on 25th July, 2024. She deponed further that, she spent the time in preparation of the documents for filing the application. Therefore, it is my view that the applicant has sufficient reason for the delay and she managed to account for the days of delay. In the upshot, this application is meritorious. It is granted as prayed. The applicant is given thirlry (30) days from the date of delivery of this ruling within which to lodge a record of appeal and Memorandum

I of Appeal. As the application originates from matrimonial proceedings, I make no order as to the costs, Ordered accordingly. DATED at DODOMA 2gththis day of August, 2025. L. E. MGONYA JUSTICE OF APPEAL Ruling delivered this 29th day of August, 2025 in the presence of Ms. Judith Johnson Mollel, Applicant/in person and Mr. Godfrey Silayo, learned counsel for the Respondent via virtual Court and Shaban Kanyai, Court Clerk; is hereby certified as a true copy of the original. 5, R. W, CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL