Shungu Mlewa vs Michael Kalunga (Civil Application No. 521 of 2025) [2025] TZCA 898 (28 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 521 OF 2025 SHUNGU M LEW A..............................................................................APPLICANT VERSUS MICHAEL KALUNGA ....... ............................. ........ ............. RESPONDENT (Application for extension of time to lodge an appeal against a decision of the High Court of Tanzania - Land Division at Dar es Salaam) (FikmmJ.) dated the 29th day of November, 2012 in Land Application No. 115 of 2009 RULING 27th & 28lh August, 2025 A G ATH O , J.A.: The applicant by way of a Notice of Motion brought under Rule 10 and Rule 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) preferred the present application seeking an order for the extension of time within which to appeal against the decision of the High Court of Tanzania - Land Division in Miscellaneous Land Application No. 115 of 2009. The application is supported by an affidavit sworn by the applicant himself. The respondent resisted the application by filing his affidavit in reply. When the application came for hearing, the learned advocates for the parties appeared via video conference from Dar es Salaam and Ifakara i

respectively. White the applicant was represented by Ms. Josephine Ndelike, learned advocates, Mr. Daniel Lisanga, learned advocate stood for the respondent. Both intimated their readiness to proceed with the hearing. Ms. Ndelike told the court that the applicant is applying for extension of time to lodge an appeal out of time brought under rule 10 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) by way of a Notice of Motion supported by an affidavit deponed by the applicant. The learned counsel informed the Court that the applicant was given extension of time to file a notice of appeal which he filed timely. But he delayed lodging his appeal on time because he was following up the proceedings as it is an old case. However, she conceded that there is no letter to show that the applicant was following up to the Deputy Registrar for the said proceedings. She equally admitted that these facts are not in the applicant's affidavit. But she was quick to submit that the applicant is a lay person and was going to court on and off. It is for this reason she beseeched the court to be lenient on procedural requirements. She added that the applicant promptly filed the notice of appeal. In the end, she invited the Court to grant the application.

On his side, and at the outset, Mr. Lisanga, pointed out that the respondent has filed affidavit in reply in Court, but they failed to serve the applicant, which means they have not effected any service. Understandably, he submitted on points of law only. He reminded the Court that the applicant filed the application for extension of time to lodge an appeal, but he also applied to the High Court for review which was dismissed. This Court marked the Civil Application No. 267/17 of 2022 withdrawn. Then the applicant applied to the High Court for extension of time to file notice appeal which was granted but he delayed to lodge the memorandum of appeal to initiate his appeal. He also contended that in Civil Application No. 267/17 of 2022 which was before this Court, the applicant annexed all the proceedings of the High Court and advocate Edward Ngatunga was leading him. As shown below this latter point on legal representation is untrue. Nevertheless, the learned advocate concluded that the applicant has no good cause to be granted an extension of time to lodge an appeal. For that reason, he urged the Court to dismiss the application. Rejoining, Ms. Ndelike elaborated that the applicant sought before the Court vide Civil Application No. 267/17 of 2022 an extension of time to apply for review of the High Court ruling, the same was withdrawn. Thereafter, he went to the High Court and applied for the extension of 3

time to file notice of appeal which was granted and he file the said notice of appeal. But, I have observed that the argument that the Civil Application No. 267/17 of 2022 was for extension of time to file review is incorrect because the applicant was seeking an order for extension of time to lodge the intended appeal and serve the relevant notice of appeal on the respondent. Regarding a controversy that the applicant had legal representation of Mr. Edward Ngatunga, as rightly submitted by Ms. Ndelike this man is indeed not an advocate. And the record bears witness, in the order given in Civil Application No. 267/17 of 2022 apparently the applicant was unrepresented. In a bid to justify the delay, Ms. Ndelike's submitted that since the case whose ruling is sought to be challenged by way of an appeal is old, its record was hard to find plus the fact that the applicant is a lay person. In the end she implored the Court to grant the application. I have dispassionately considered the gist of rival submissions and noted that the bone of the application is whether the applicant has shown a good cause for the Court to exercise it discretion to extend time to file an appeal. It was held in Kalunga and Company Advocates v. National Bank of Commerce [2006] T.L.R. 235 that the determinant

of an application for extension of time is the presence of a good cause. In the case at hand, the applicant averred that he was following and waiting to be availed the necessary documents for compilation of record of appeal. However, there is no evidence to confirm this. The supporting affidavit contains no averment or annexture to show that the applicant applied to the Deputy Registrar for copies of judgment or ruling and proceedings. Besides that, the applicant claimed in his Notice of Motion that there are material irregularities in Land Application No. 115 of 2009 which was before the High Court Land Division at Dar es Salaam alleging that the respondent forged the attached contract therein. Nevertheless, throughout his affidavit, the applicant averred nothing regarding the said forgery. Nonetheless, it is understood that illegality constitutes a good cause for extension of time. But as held in Lyamuya Construction Company Limited v The Board of Trustees of Young Women Christian Association of Tanzania [2011] TZCA 4 that illegality should be apparent on record. It should not be the one requiring long drawn out process to uncover it. Here the alleged forgery can hardly be discerned from the supporting affidavit. This ground therefore lacks substance. As for the requirement of accounting for each day of the delay which has been emphasized in a plethora of the Court's decisions including the cases of Moto Matiko Mabanga v. Ophir Energy Pic and Two 5

Others [2019] TZCA 135; and Bushiri Hassan v. Latifa Lukio Mashayo [2008] TZCA 220 that is mandatory. In the supporting affidavit paragraphs 6 and 8, the applicant is simply saying he discovered that he did not have some documents and when he located them, he was already out of time. The sixty days within which to lodge record of appeal had lapsed. Clearly, he failed to account for each day of the delay from 7th September 2024 when he filed in Court his notice of appeal to 7th March 2025 when the present application was filed in Court. For the foregoing reasons, the application at hand is deficient of merit and it is dismissed. Considering the circumstances of this case no order as to costs is given. DATED at DODOMA this 28th day of August 2025. U. J. AGATHO JUSTICE OF APPEAL Ruling delivered this 28th day of August, 2025 in the presence of Ms. Josephine Ndelike, learned counsel for the Applicant also holding brief for Mr. Daniel Lisanga learned counsel for the Respondent, through virtual court, is hereby certified as a true copy of the original.