Salima Ally Mkalia vs Lipasakiyo Mwambembati & Others (Civil Application No. 1630 of 2024) [2025] TZCA 893 (27 August 2025)

CIN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 1630 OF 2024 SALIMA ALLY MKALIA ........... .................................................. APPLICANT VERSUS LIPASAKISYO MWAMBEMBATI,.... .................................... 1 st REPONDENT MELKIORY MAFIKIRI MACHA ................... , ............. . ......2 nd RESPONDENT RAYMOND MASAWE ............................. ...................... ....3 rd RESPONDENT PETER TESHA .................................................................. 4 th RESPONDENT SHEBE YUSUFU MTAMBO. ............................ . .................. 5™ RESPONDENT JANETI DAMIAN..................................................... . ....... 6™ RESPONDENT JOSEPH CHISANDU..........................................................7™ RESPONDENT VICE NT MSIGWA............................................................. 8™ RESPONDENT CHRISTINA TEGULO ......... . ...................... . ............... . ...... 9™ RESPONDENT AMINA KIZINGA...........................................................10 th RESPONDENT PAULO NDAJE..... ................. . ........................................ 11™ RESPONDENT ELIA MAKUNDI........................................ . ..................... 12™ RESPONDENT RICHARD MAKUNDI.......................................................13™ RESPONDENT (Application for Extension of Time to Lodge Memorandum and Record of Appeal against the Decision of the High Court of Tanzania, Land Division, at Dar es Salaam) (Ndunquru, J.) Dated the 23r d day of July, 2019 in Land Case No. 412 of 2016 RULING 26th & 27th August, 2025. KEREFU. J.A.: The applicant, Salima Ally Mkalia, has lodged this application seeking an order for extension of time within which to lodge a memorandum and record of appeal against the decision of the High Court of Tanzania, Land Division, at Dar es Salaam in Land Case No. 412 i

of 2016. The application is brought by way of notice of motion made under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and it is supported by two affidavits taken by the applicant and John Seka Esq, learned counsel for the applicant. For a better appreciation of issues raised herein, it is important to explore the background of the matter and the factual setting giving rise to the current application as obtained from the record of application. That, in 2019, the applicant instituted a land dispute against the respondent vide Land Case No. 412 of 2019 praying, among others, to be declared the lawful owner of a parcel of land situated at Mbezi Msakuzi within Mpiji Magohe (the suit land) in Dar es Salaam. The said applicant stated that, the original owner of the suit land was her late father who died on 2n d November, 1965 when she was still young. That, upon the death of her father, the suit land remained under the supervision of a clan member one Ally Kimbwangali Makunge up to 1991 when it was handed over to her. Subsequently, she took charge of the suit land by planting seasonal crops till when it was trespassed by the respondents. In their written statements of defence, the respondents vehemently disputed the applicant's claim by stating that, the suit land was surveyed 2

and the first respondent was issued with the Letter of Offer while the second respondent was issued with the Certificate of Title and the rest of the respondents acquired their surveyed plots by purchase from the local government authority and from other occupiers. As such, the respondents prayed for the applicant's suit to be dismissed with costs. Having heard the parties, the trial court, decided the matter in favour of the respondents and declared them the lawful owners of their respective plots. Hence, the applicant's suit was dismissed on 23r d July, 2019. Aggrieved, on 30th August, 2023, the applicant, upon being granted extension of time, she lodged a notice of appeal in this Court challenging the decision of the trial court. She, however, failed to lodge the memorandum of appeal within the time prescribed by the law, hence the current application as indicated above. In his affidavit in support of the application, Mr. Seka, among other things, under paragraphs 13 to 17 stated that the impugned decision is tainted with illegalities, that: (i) The Iearned trial Judge made a firm finding, based on scant evidencef that the suit iand was compulsory acquired by the government and consequently declined the applicant's claims; 3

(ii) The learned trial Judge failed to evaluate the applicants evidence on her customary title on the suit land; and (iii) The learned trial Judge failed to address the issue of locus standi o f the applicant regarding the suit land, as to whether she was the beneficiary or an administratrix o f the estate o f her late father who was alleged to be the original owner o f the suit land. That, based on the pointed-out illegalities together with the fact that the applicant acted diligently in pursuing her application, he prayed for the Court to grant prayers sought in the notice of motion. It is noteworthy that, the respondents, though duty served with the copy of the application, did not file an affidavit in reply to contest and/or otherwise support the application. At the hearing of the application, the applicant was represented by Mr. John Seka learned counsel whereas the respondents were represented by Mr. Living Raphael, also learned counsel. Upon taking the floor, Mr. Seka commenced his submission by adopting the contents of the notice of motion and the two affidavits supporting the application to form part of his oral arguments. He thereafter, narrated the historical background to the application as indicated above. 4

Amplifying on the reason for the delay, Mr. Seka argued that, the applicant had taken various steps to challenge the impugned decision including, timely lodging of the notice of appeal but her efforts to have his appeal being heard by the Court had been delayed and/or blocked by technicalities. That, the applicant being a layperson and an old woman coupled with her financial constraint to engage an advocate, delayed her to pursue the appeal. To support his argument, Mr. Seka referred me to paragraphs 3, 4, and 5 of the applicant's affidavit read together with paragraphs 5 and 6 of his affidavit. That, notwithstanding her diligence and determination to prosecute her appeal, the applicant ended up pursuing irrelevant applications in wrong forums until 10th December, 2024 when she was afforded legal aid services by the Tanganyika Law Society and the matter assigned to him. That, after being availed with the record of appeal, he advised the applicant to lodge the current application on 31s t December, 2024. He therefore insisted that, the applicant has been diligent in pursuing this matter as she made tireless follow-ups to seek the audience of the Court to challenge the impugned decision, but all in vain. He thus urged me to find that there is sufficient cause to grant the application. 5

On the alleged illegalities, Mr. Seka argued that the impugned decision is tainted with illegality as the learned High Court Judge, among other things, failed to address the issue of locus standi and the status of the applicant in the suit, as to whether she instituted the same as an administratrix of the estate of her late father or as the beneficial owner of the suit land. It was his argument that, the pointed-out illegality had rendered the High Court's decision invalid. In conclusion, Mr. Seka submitted that the reason he had advanced constitute a good cause within the purview of rule 10 of the Rules. He thus urged me to grant the application. Having been invited to respond on what has been submitted by his learned friend, Mr. Living decided to leave the matter to the wisdom of the Court, with no more. From the foregoing submissions, it is essential to reiterate that the Court's power of extending time under Rule 10 of the Rules is both wide ranging and discretionary but the same is exercisable judiciously upon good cause being shown. It may not be possible to lay down an invariable or constant definition of the phrase "good cause", but the Court consistently considers such factors like, the length of delay involved, the reasons for the delay; the degree of prejudice, if any, that 6

each party stands to suffer depending on how the Court exercises its discretion; the conduct of the parties, and the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal or revision. There are numerous authorities to this effect. See for instance the case of Kalunga & Company Advocates Ltd v. National Bank of Commerce Ltd (2006) TLR 235. Another factor to be considered in the application of this nature is whether there is a point of law of sufficient importance such as illegality of the decision sought to be challenged. Among the decisions on this point include, Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4 and Principal Secretary Ministry of Defence and National Service Vs Divram P. Valambhia (1992) TLR 385. In the latter case, this Court stated that: '7/7 our view when the point at issue is one aiieging illegality o f the decision being challenged, the Court has a duty even if it means extending the time for the purpose to ascertain the point and if the alleged 7

illegality be established, to take appropriate measures to put the matter and the record right". In the instant application, while considering the points of illegalities raised by the applicant, I am mindful of the fact that, as a single Justice, I am not supposed to dig much on the same but only to consider as to whether the same constitute a good cause to warrant grant of this application. Therefore, having thorough perused the record of application and considered Mr. Seka's oral submission and taking into account that the respondents are not opposing the application, it is my considered view that the point of illegality on the failure by the learned trial Judge to address the issue of locus standi and the status of the applicant in instituting the suit is sufficient ground to warrant grant of this application. It is on record that, while instituting the suit, the applicant clearly indicated that the original owner of the suit land was her late father who died on 2n d November, 1965 when she was still young. That, following the death of her father, the suit land remained under the supervision of a clan member one Ally Kimbwangali Makunge up to 1991 when the suit land was handed over to her. In the circumstances, it was incumbent for s

the trial court to ascertain the locus standi of the applicant as to whether she instituted the said suit as an administratrix of the estate of her late father or as the beneficial owner of the suit land. Thus, the said point of illegality raised by the applicant constitutes a good cause for the Court to exercise its discretion to grant extension of time. In the premises, I find merit in the application and it is hereby granted. The applicant should lodge the intended application within sixty (60) days from the date of delivery of this ruling. Considering the circumstances of this application, I make no order as to costs. DATED at DODOMA this 27th day of August, 2025. Ruling delivered this 27th day of August, 2025, in the presence of Mr. John Soka, learned counsel for the Applicant and Mr. Living Raphael, learned counsel for the Respondents, is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL C. M. FIMljESA DEPUTY REGISTRAR COURT OF APPEAL