Mshamu Chengo Ngomba vs Mshamu Aikosi Mbungu & Another (Civil Application No. 873 of 2024) [2025] TZCA 902 (28 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 873 OF 2024 MSHAMU CHENGO NGOMBA (the Administrator of the estate of the late CHENGO NGOMBA)............................................APPLICANT VERSUS MSHAMU AIKOSI MBUNGU ..................................................... 1 st RESPONDENT VODACOM TANZANIA LIMITED................................ ............ 2 nd RESPONDENT (Application for extension of time to apply for certified copies of the proceedings against the Judgment of the High Court of Tanzania, at Mtwara) (Ngwembe, J.) dated the 28th September, 2020 in Land Appeal No. 18 of 2019 RULING 27th & 28thAugust, 2025 MASOUP, J.A.: This is an application by way of notice of motion in which the applicant is seeking extension of time within which to apply for certified copies of the proceedings, judgment, and decree of the High Court in Land Appeal No. 18 of 2019, delivered on 28th September 2020. The application is supported by an affidavit sworn by the applicant, and is opposed by both respondents who filed affidavits in reply. i

The background of the dispute is not in controversy. It arose from Land Application No. 3 of 2018 before the District Land and Housing Tribunal for Lindi at Kiiwa (The Tribunal). In that application, the applicant, acting as administrator of the estate of the iate Chengo Ngomba, unsuccessfully claimed for ownership of land situated at Chumo Village. The Tribunal dismissed the claim on 6th August 2019. The applicant appealed to the High Court in Land Appeal No. 18 of 2019, but his appeal was dismissed on 28th September 2020. A notice of appeal was lodged on 23rd October 2020, but a letter requesting for certified copies of the proceedings, judgment, and decree under Rule 90(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) was belatedly lodged on 26th November 2020, that is, 29 days outside the prescribed time of thirty days. Thereafter, the applicant filed an application for leave to appeal to this Court before the High Court (Misc. Civil Application No. 2 of 2021), which was dismissed on 21st October 2021. Subsequently, he filed an omnibus application before this Court (Civil Application No. 09/07 of 2022), which was partly struck out and later withdrawn on 10th June 2024. The present application was eventually lodged on 27th September 2024. 2

At the virtual hearing of the application, the applicant appeared in person. On the other hand, Mr. Hassan Yassin and Mr. Juvenalis Ngowi, both learned counsel appeared for the first and second respondents respectively. I have considered the notice of motion, the affidavit in support, and the submissions made by the parties. It is evident, as argued by the learned counsel, that the ground raised in the notice of motion is not reflected at all in the supporting affidavit. I, therefore, entirely agree with the learned counsel's submissions that the said affidavit does not support the application. The question therefore is whether the applicant has shown "good cause" under Rule 10 of the Rules. In relation to that question, I am mindful that the averments in the affidavit in support do not support the ground in the notice of motion as alluded to herein above. I am also mindful of the apparent relief for extension of time sought by the applicant. See, Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1991] TLR 387. The principles governing extension of time are settled. See for instance, Lyamuya Construction Company Ltd v. Board of Registered Trustees of YWCA of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4; and Daphyne Parry v. Murray Alexander Carson (1963) EA 3

546, relied on in Hawa Issa Nchirya v. Ramadhani Iddi Nchirya & 2 Others, Civil Application No. 27 of 2021 [2021] TZCA 450. They include accounting by the applicant of each and every day of delay, demonstration by the applicant that the delay is not inordinate, showing of diligence and not negligence, apathy or sloppiness, and raising of sufficient reasons justifying granting of the sought extension. The applicant attributes the 29 days' initial delay in lodging the request for certified copies of the proceedings of the proceedings to his advocate's negligence. Although this Court in Michael Lessani Kweka v. John Eliafye, Civil Application No. 6 of 1996 [1997] TZCA 118, accepted that counsel's mistake may, in exceptional circumstances, constitute good cause, such indulgence is only available where the applicant acts promptly to remedy the lapse. In the present matter, however, although the lapse was discovered in December 2020, the applicant did not at all take necessary steps as alluded to herein above. Instead, he embarked on several applications which mainly ended up to be resolved against him, only to come back before this Court in September 2024, nearly four years later. This delay is clearly inordinate and has not been accounted for, contrary to the principles enunciated in Lyamuya Construction (supra) and restated in

the case of Hawa Issa Nchirya (supra). On this account, I am also in agreement with the submissions by learned advocates for the first and second respondents. In the event, I am satisfied that the applicant has failed to demonstrate good cause to warrant granting of sought extension of time under Rule 10 of the Rules. The delay of nearly four years, coupled with failure to account for each day of the delay, demonstrates negligence and lack of diligence. Accordingly, the application is dismissed with costs. It is so ordered. DATED at DODOMA 27ththis day of August, 2025. Ruling delivered this 28th day of August, 2025 in the presence of Mr. Mshamu Ngomba, Applicant/Unpresented, Mr. Hassan Yasin, counsel for the 1st Respondent and Mr. Juvenalis Ngowi, counsel for the 2n d Respondent, is B. S. MASOUD JUSTICE OF APPEAL 5