Abdulswamadu Mohamed & Others vs Dar Es Salaam Water & Sewerage Authority (DAWASA) (Disestablished) & Others (Civil Application No. 565/18 of 2024) [2025] TZCA 918 (28 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 565/18 OF 2024 ABDULSWAMADU MOHAMED KASSIM MWANGA ............... JOHN MWAKIPESILE ........... . ,1 st APPLICANT 2 nd APPLICANT 3 rd APPLICANT VERSUS DAR ES SALAAM WATER AND SEWERAGE AUTHORITY DAWASA) (Disestablished) DAR ES SALAAM WATERSUPPLY AND SANITATION AUTHORITY (DAWASA) (established) ....... 1 st RESPONDENT DAR ES SALAAM WATER AND SEWERAGE CORPORATION DAWASCO (Disestablished) ................. 2 nd RESPONDENT (Application for Extension of time to file Notice of Motion and arising from the Order of Court of Appeal of Tanzania at Dar es Salaam) (Galeba. J.A.^ dated the 16th day of July, 2024 in 27th & 28th August, 2025 NGWEMBE. JA.: This is an application for extension of time made under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). At the hearing, the applicants were represented by Mr. Respicius Mkandala, holding brief for Mr. Aidan Kitale, learned advocate with instructions to proceed l Civil Application No. 450/18 of 2024 RULING

with the hearing. Equally, the respondent enjoyed representation of a team of learned State Attorneys led by M r. Ayub Sanga, Joseph Tibaijuka and Emma Ambonisye. At the earliest, Mr. Mkandala prayed for an adjournment to another hearing date without disclosing any viable reason. However, Mr. Tibaijuka opposed the prayer by arguing that the application is incapable of being adjourned. He amplified that the application is defective to the extent that it is incompetent and incapable of being adjourned. Mr. Tibaijuka buttressed his position with the decision of Shangwe Mjema v. Frida Salvatory & Another (Criminal Appeal 103 of 2017) [2020] TZCA 61 (16 March 2020), where the Court ruled that an incompetent application is incapable of being adjourned or withdrawn, but should be struck out. He emphasized that the instant application is likewise incompetent to be adjourned. M r. Sanga, disclosed that the application is overtaken by events because there is nothing to be amended as the intended application No. 450/18 of 2022 was already determined by Hon. Justice Galeba on 16th July, 2024. Hence, the instant application should be struck out. Emphatically, Ms. Ambonisye, argued that the orders comprised in the 2

notice of motion are misconceived because they are praying for extension of time to apply for extension of time. She buttressed her argument with a decision in Seif Abdallah Mapua v. Rev. Dr. William Mathayo Mntenga (Civil Application No. 907/17 of 2023) [2025] TZCA 595 (16 June 2025). Hence, implored the Court to strike out the application for being incompetent. In rejoinder, M r. Mkandala reiterated his prayer that the hearing be adjourned to another date. On competence of the application, he argued that the first prayer was improperly drafted and the second prayer was likewise not properly drafted. It is evident on record that the application is not known what the applicants seek from this Court and under which provision of the law. Even if the applicants purported to cite rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules), it is mixed up with some reliefs which are incompatible with the governing rule of law. It is on record that the instant application was filed on 26/07/2024 by the applicants through the same advocate who handled the matter from CMA, but the reliefs sought in the notice of motion are ambiguous, confusing and unknown in law. For clarity, I will reproduce the relevant part of the notice of motion: 3

(i) This Honourable Court grant extension of time to fife the application for extension of time to file a notice of motion supported by the amended affidavit of advocate Symphorian Reveiian Kitare. (ii) The applicants be allowed to replace the affidavit sworn by Advocate Kelvin Lubago by the affidavit sworn by Advocate Respicius R.S. Mukandala. (Hi) Any other order this Honourable Court may deem fit to grant. (iv) Costs of and incidental thereto abide the results of the application. Equally, the affidavit in support is difficult to grasp its essence. In law, when a matter is struck out, it ceases to exist as a whole. Nothing related to that matter may remain. See; Amos Fulgence Karungula v. Kagera Co-operative Union (1990) Ltd. (Civil Application No. 435/04 of 2017) [2017] TZCA 144 (6 December 2017) and Mbeya- rukwa Autoparts & Transport Ltd. v. Jestina George Mwakyoma [2003]T.L.R. 251. Considering the above prayers, it seems the applicants are inviting the Court to extend time to file an application for extension of time which prayer is a misnomer. Likewise, the second prayer to replace an affidavit of one advocate with another advocate's affidavit is difficult to grasp. The question is whether a party needs to apply for extension 4

of time to be able to file another application for extension of time. The answer is not far from the decision of this Court in the case of Tanzania Rent A Car Limited v. Peter Kimuhu, Civil Application No. 226/01 of 2017 [2019] TZCA 173, in that case the Court took the view that a party need not make separate applications every time he is caught up by time bar. In the case of Seif Abdallah Mapua (supra), the Court observed that what a party needs to do is to account for the entire duration of the delay in one application. Then the Court asked, how many such applications would be instituted if every delay would constitute a separate application for extension of time. In conclusion, the Court firmly held: "The wording of Rule 10 of the Rules, carefully considered In my view, suggests that even where an applicant is late for so many days beyond the prescribed period of doing an act, he has to file one application for extension of time in which he is to give satisfactory reason for the delay for the whole period he has been late" The holding above has remained the position of law to date. One cannot be allowed to apply for extension of time to file the application for extension of time to file a notice of motion supported by the 5

amended affidavit. Also, be allowed to replace the affidavit sworn by one advocate with another advocate's affidavit. Such prayers cannot be condoned to stand in law. Therefore, multiplicity of applications for extension of time is contrary to the law and good legal practice. However, Mr. Mkandala prayed for an adjournment which prayer was strongly objected by the learned State Attorneys which objection was based on a logical legal reasoning that an incompetent application is incapable of being adjourned or withdrawn. In a similar circumstance occurred in the case of Shangwe Mjema (supra); and Ghati Methusela v. Matiko Marwa Mariba, Civil application No. 6 of 2006, where the Court faced a similar situation to that in the instant application and observed as follows: "It is now established law that an incompetent proceeding, be it an appeal, application, etc, is incapable of adjournment, for the Court cannot adjourn or allow to withdraw what is incompetent before it See Leons Ngatai v. Hon. Justin Salakana & The Hon. Attorney General" The instant application is incompetent which is incapable of being adjourned as prayed by the learned advocate for the applicant. I would 6

therefore, agree with the learned State Attorneys that the application should not be adjourned, but it should be struck out. In view of what I have reasoned above, I hereby strike out the application with no order as to costs because it arises from a labour matter. DATED at DODOMA this 28th day of August, 2025. P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 29th day of August, 2025 in the presence of Mr. Benson Florence, learned Counsel for the 1s t, 2n d and 3r d Applicants, Mr. Emma Ambonisye, learned State Attorney for the 1s t, 2n d Respondents via virtual Court and Emmanuel Saanane, Court Clerk; is hereby certified as a true copy of the original. 7