Raymond Gamaliel Mallya & Another vs TCCIA Muheza Saccos Ltd and Straightline Auction Mart Ltd (Civil Application No. 682 of 2025) [2025] TZCA 917 (28 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 682 OF 2025 RAYMOND GAMALIEL MALLYA ................................ .......... 1 st APPLICANT RHODA R. MALLYA .... ............................................... ,...,...2N DAPPLICANT VERSUS TCCIA MUHEZA SACCOS LTD .......................................... 1ST RESPONDENT STRAIGHTLINE AUCTION MART LTD ...... .......................2 nd RESPONDENT (Application for extension of time to file notice of appeal against the decision of the High Court of Tanzania at Tanga) fRuoazia, J/ > Dated the 30th day of June, 2015 in Land Case No. 12 of 2009 RULING 27th & 28th August, 2025 NGWEMBE. JA.: The applicants, Raymond Gamaliel Mallya and Rhoda R. Mallya are husband and wife and jointly applied for extension of time under certificate to lodge a notice of appeal against the judgment and decree of the High Court in Land Case No. 12 of 2009. The application is pegged on section 11 (1) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019 and rules 10 and 45A of the Court of Appeal Rules, 2009 (the Rules). In their joint affidavit in support to the notice of motion, they averred that their delay in issuing notice of appeal was attributed to the i

High Court's failure to issue them the correct certificate of delay together with proceedings, judgment and decree. A brief recap of this application traces back to a loan agreement with the first respondent, whereby the first applicant secured a loan of TZS. 9 million and the second applicant likewise accessed a loan of TZS. 5 million from the same respondent. Each loan had an interest rate of 2%. Both loans depended on the joint security of their property on Plot No. 126 where upon stood a wooden structure housing timber machine. However, the applicants failed to repay their loans, hence the first respondent exercised her right on the security. In turn the applicants being dissatisfied with the decision of the respondents to recover their money from the security, instituted Land Case No. 12 of 2009, alleging that the respondents had vandalized their property placed as security, thus occasioning loss to them. They claimed compensation of TZS. 250,000,000/- and TZS. 2,000,000 for loss of income for the entire period of the invasion as well as general damages. However, upon full trial, the High Court (Rugazia, J as he then was) on 30/06/2015 dismissed the suit. Consequently, the applicants duly managed to institute an appeal to this Court, but the appeal was struck out for having a defective notice of appeal. Again, they successfully, applied for extension of time to file notice of appeal before Amour J (as 2

he then was), in Misc Land Application No. 89 of 2016 and then lodged their notice of appeal to the Court and requested for certified copies of documents of the trial court. Despite being supplied with the requested record, they alleged that the certificate of delay was defective, which called for another application for extension of time before Hon. Chaba, 3 . Equally, the application was dismissed for the reason that they failed to account for the period of delay. Thus, the instant application as the second bite. At the hearing of this application before me, Mr. Adrian Ndunguru, learned advocate entered appearance holding brief of Mr. Gideon P . Opanda for the applicants, but with instructions to proceed with hearing. M r. Pius James Mtangi identified as an officer from TCCIA Muheza SACCOS LTD appeared in person unrepresented and in the absence of the 2n d respondent. Before commencement of hearing, M r. Mtangi informed the Court that the 1s t respondent was not served with the notice of motion, affidavit and other documents, but he confirmed to have been served only with the written submission filed by the applicants, thus, unaware of the application which is subject for hearing. Responding thereto, M r. Ndunguru admitted that there is no proof of service of the documents to 3

the 1s t respondent. Therefore, according to the law, the application may be struck out to allow the applicants to start afresh. It is settled law that upon filing notice of motion to the Court, it must be served to the respondent and whoever will be affected, within 14 days. Rule 55 (1) of the Rules is crystal clear as reproduced hereunder: "The notice of motion, affidavit and all supporting documents shaii, within fourteen (14) days from the date of filing, be served upon the party or parties affected." The excerpt above has been amplified by the Court in numerous decisions including; Ephraem Christopher Manase Mrema v. Homange Kastory Kunzugala and Mwananchi Insurance Company, (Civil Application No 9301 of 2024) 2025 TZCA 644 (30 June 2025); and Rashid Twalib Makonyora (Administrator of the Estate of the Late Twalib Rashid Makonyora) and others v. Salim Twalib Makonyora (Minor) and Another (Civil Application No. 21 of 2015) [2015] TZCA 973 (9 December 2015). In those two applications, the Court emphasized that in the absence of evidence proving service to the respondent with the notice of motion, affidavit and all supporting documents within fourteen (14) days from the date of

filing the same in Court, renders the application incompetent. With emphasis, rule 55 (1) of the Rules is couched in a mandatory manner that the notice of motion, affidavit in support and all other documents shall be served to the respondent and to whoever will be affected within fourteen (14) days from the date of filing. Failure to prove service, like in the instant application, renders the application incompetent. In view of the above legal position, I agree with the learned counsel that the applicant failed to prove service to the respondent. Consequently, the application is incompetent. Therefore, I hereby strike out this application with costs. 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. Adrian Ndunguru hold brief of Mr. Gidion Opanda both learned Advocate for the Applicants and in the absence of the Respondents through Virtual Court is hereby certified as a true copy of the original. 0. H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL

filing the same in Court, renders the application incompetent. With emphasis, rule 55 (1) of the Rules is couched in a mandatory manner that the notice of motion, affidavit in support and all other documents shall be served to the respondent and to whoever will be affected within fourteen (14) days from the date of filing. Failure to prove service, like in the instant application, renders the application incompetent. In view of the above legal position, I agree with the learned counsel that the applicant failed to prove service to the respondent. Consequently, the application is incompetent. Therefore, I hereby strike out this application with costs. DATED at DODOMA this 28th day of August, 2025. The Ruling delivered this 29th day of August, 2025 in the presence of Mr. Adrian Ndunguru hold brief of Mr. Gidion Opanda both learned Advocate for the 1st and 2n d Applicants, in the absence of the Respondents via virtual Court and Emmanuel Saanane, Court Clerk; is hereby certified as a true copy of the original. P. J. NGWEMBE JUSTICE OF APPEAL