TALGWU on behalf of Omary Zubery & Others vs Ilala Municipal Council & Others (Civil Application No. 675/01 of 2024) [2025] TZCA 885 (27 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PODOMA CIVIL APPLICATION NO. 675/01 OF 2024 TALGWU ON BEHALF OF OMARY ZUBERY & 576 OTHERS ........ APPLICANTS VERSUS ILALA MUNICIPAL COUNCIL ................ . ................................ 1 st RESPONDENT KINONDONI MUNICIPAL COUNCIL......................................2 nd RESPONDENT TEMEKE MUNICIPAL COUNCIL ............................................. 3 rd RESPONDENT MOROGORO MUNICIPAL COUNCIL...................................... 4 th RESPONDENT MWANZA MUNICIPAL COUNCIL........................................... 5 th RESPONDENT DODOMA MUNICIPAL COUNCIL................................. . ........ 6™ RESPONDENT TANGA CITY COUNCIL ........................................................... 7™ RESPONDENT MPWAPWA DISTRICT COUNCIL...........................................8™ RESPONDENT MTWARA MIKINDANI MUNICIPAL COUNCIL......................9 th RESPONDENT MASASI DISTRICT COUNCIL ..................... . ...... . ................10™ RESPONDENT SONGEA DISTRICT COUNCIL.................................. . .........11™ RESPONDENT (Arising from the Decision and Orders of this Court) f Khamis. J.Al dated 7th May 1st August, 2024 in Civil Application No. 233 /01 of 2023 RULING 25* & 27th August, 2025 NANGELA, J.A.: This application is by way of a notice of motion made under Rules 10 and 48 (1) of the Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit sworn by Mr. Stephen Mosha, a learned Advocate, duly engaged to represent the applicants. The application is for

extension of time within which the applicants are to file a reference application out of time, in respect of a decision made by a single Justice of this Court, in Civil Application No. 233/01 of 2024. The grounds upon which the application is premised may be paraphrased as being: that, the applicants have successfully accounted for their delay to act in time; that, illness of the applicants' advocate made it impossible for him to file a reference application within the prescribed time; that, the decision sought to be challenged by way of reference effectively denied the applicants their right to be heard; and, that ; the single Justice of this Court failed to act judiciously. Through an affidavit in reply, the respondents opposed this application. At the hearing of this application, the applicants had the services of Mr. Felix Mutaki, a learned advocate, while Ms. Lightness Godwin Msuya, a learned Senior State Attorney, assisted by Ms. Careen Masonda, a learned State Attorney, appeared for the respondents. In his submission in support of the application, Mr. Mutaki adopted the notice of motion and its supporting affidavit as forming part of his oral submissions and urged this Court to grant the prayers sought by the applicants because, first, as disclosed in paragraphs 11 to 14 of the

supporting affidavit, there are cogent grounds regarding why the applicant was late to file the reference application. Second, under those paragraphs of affidavit of Mr. Mosha, the applicants' counsel, it is made clear that he was absent in Court when the decision in Civil Application No. 233/01 of 2023 was delivered by the single Justice of this Court and, that, the reasons for his absence was because he was attending the Tanganyika Law Societies' (TLS) General Annual Conference in Dodoma. Third, was the reason that, after the TLS meeting on the 04/08/2024 and, while commencing his journey to Dar-es-Salaam on the 05/08/2024, Mr. Mosha, the applicants'advocate, fell sick whereof he was placed on bed rest at Buruhani Charitable Health Care Centre. Mr. Mutaki contended that, since the applicants'counsel was given seven days from 1/08/2024 to 7/8/2024 within which he was to lodged the reference application, and given that he fell sick and was given a bed rest from 06/08/2024 to 27/8/2024, it was therefore impossible for him to have filed the application within time given that sickness was not his own choice but a condition that was out of his human control. In view of those three reasons, Mr. Mutaki urged this Court to grant the application. For her part, Ms. Msuya, adopted the respondent's affidavit in reply together with her written submissions filed in this Court as forming part 3

of her oral clarifications. She clarified that the applicants have not managed to provide sufficient reasons as to why this application should be granted. According to Ms. Msuya, the learned counsel for the applicants' counsel did not provide any proof to evince that he, indeed, attended the TLS meeting in Dodoma. Moreover, it was Ms. Msuya contention that, even if it were true that Mr. Mosha attended the TLS meeting in Dodoma, since he knew that he was to attend such a meeting, he ought to have engaged another advocate from his law firm to do the requisite lodgements in Court. She maintained that earlier Mr. Mosha had relied on the services of Advocate Kaizer Msosa, who appeared in Court and received the ruling in the Civil Application No. 233/01 of 2023, which ruling had granted the applicants seven (7) days within which they were to file the requisite application for reference. To bolster her argument, Ms. Msuya submitted that, even before this Court today, the advocate appearing in Court is not Mr. Mosha and, she surmised, a similar approach could have been timely taken by Mr. Mosha in compliance with the Court order. Ms. Msuya submitted further that, the letter of the Chief Justice which is attached in the applicants' supporting affidavit as Annex. TAB-11 is not evidence of Mr. Mosha's attendance during the TLS meeting but only evinces a general permission which does not guarantee that the bearer of that letter attended the

meeting. She argued that evidence such as attendance sheet, attendance ID of Mr. Mosha and, a bus or air ticket as well as hotel receipts, were all necessary documents which could have proved Mr. Mosha's attendance at the said TLS Meeting. Ms. Msuya contended that there has also been no proof that Advocate Kaizer Msosa was holding brief of Mr. Mosha when he attended in Court on 1/08/2024 to receive the ruling in Civil Application No. 233/01 of 2023, and more, Mr. Kaizer never deponed any affidavit to prove such a fact. She relied on the case of Ramadhani J. Kihwani vs. TAZARA, [2019] TZCA 171 (TanzLII) to support a view that where there is a prayer for extension of time, all persons mentioned therein as material persons must swear an affidavit. She submitted, therefore, that, from 1/8/2024 to 3/8/2024 there is no account given in respect of those days. She urged this Court to take note of that submission. Concerning the sickness of Mr. Mosha as a ground upon which the prayer for extension of time is premised, it was Ms. Msuya's submission that, what was submitted and what was stated in the affidavit of Mr. Mosha under paragraph 12 do not tally because, what is disclosed in Annex. TAB 11 is that Mr. Mosha was given an ED of only three (3) days. Consequently, the days from 6/10/2024 to 27/8/2024 are days which are unaccounted for. Ms. Msuya contended further that, the supporting evidence annexed to Mr. Mosha's affidavit forming part of the Annex. TAB

11 is also wanting. She reasoned that the attached receipts (forms) do not present a sequential flow of events given that, while the first receipts marked serial No. A 5481 is dated 05/8/2024, the second which is marked with serial No. A 5479 is dated 27/8/2024. It was her contention that, as a matter of fact, those receipts (forms) are ordinarily issued serially on a sequential numbering order. She argued, however, that, looking at the attached receipts (forms) the sequence under which these were issued is questionable making them unreliable. Ms. Msuya was of a further view that, even if Mr. Mosha was sick, during his alleged sickness, he could have still asked another advocate in his chamber to file the reference application given that, such a task could have even been accomplished by a mere letter to the Court. She therefore contended that Mr. Mosha failed to act diligently, a tendency which is clearly supported by the history of this matter and well acknowledged by himself in paragraph 5 and 7 of his own affidavit. For that reason, she urged this Court to find that the learned counsel lacked diligence in his conduct, and this application should be dismissed. Concerning the various cases relied on by the applicants in support of their application, Ms. Msuya was of the view that they are distinguishable because in the present application, the applicants have not been able to account for all the days in which they delayed acting and

there has been no sufficient proof regarding the applicants' counsel's sickness. In a brief rejoinder, Mr. Mutaki rejoined that, regarding proof of attendance of Advocates in TLS meeting is something the Court should take judicial notice of that fact and, as stated in paragraph 12 of the applicants' affidavit, Mr. Mosha used a private means of transport to Dodoma. He further rejoined, that from the 1/8/2024 to 3/8/2024 these were dates within the time given to the applicants and should not be considered. Concerning the sickness of the applicants' counsel, he was of the view that, as shown in paragraph 12 of the affidavit, his medical receipts, does prove that he was given a three days' bed rest and, later he was to report back to his doctor after three weeks. He contended, therefore, that based on paragraph 12 of the affidavit, the applicants' counsel was granted bed rest. As regard the unreliability of the receipts (forms) as alleged by the respondent's counsel, Mr. Mutaki rejoined that such receipts were subject to human error because they were handwritten receipts. He invoked the dem inis rule, arguing that such a discrepancy should not be an issue given that, the receipts (forms) carry the Doctor's signature and there was an overall electronic receipt dated 27/8/2024 indicating that the applicants' advocate was still under medication. He, therefore, opposed the

submissions that the applicants' advocate acted without diligence, urging this Court to rely on the cases cited by the applicants and grant the prayers sought in this application. I have carefully heard the submissions made by the two rival parties and considered the record of this application as well as the authorities referred to by each party. Extending time limited by the Rules of this Court to do anything for which time to do it has elapsed or is about to, can only be possible where, as Rules 10 of the Rules so provides, an applicant to that effect has disclosed good cause. The only question for determination in this application, therefore, is whether the applicants herein have disclosed good or sufficient cause. Even so, what constitutes good or sufficient cause is nowhere defined under the Rules, meaning that, it is upon the Court, in the exercise of its discretion, to decide. But the exercise of a Court's discretion is a judicial function that must be applied appropriately in accordance with the rules of reason and justice, and not according to personal opinion or capriciously. In view of that, there exist a body of authoritative cases that have distilled some factors worth considering as a guide and the list to that effect is inexhaustive. One such cases in point is the often-cited case of Lyamuya Construction Co. Ltd vs. Board of Registered of Young Women's Christian Association of Tanzania [2011] TZCA 4 (TanzLII). In that

case, this Court noted that the applicant must not only account for all the period of delay, but also the delay should not be inordinate; and the applicant must have exhibited diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. In the present application the applicants' counset has urged this Court to grant the application because his clients have not only accounted for the delay but have also shown good cause, one being that Mr. Mosha, who was the applicants' advocate having the conduct of the matte was supposed to attend a meeting of TLS in Dodoma and afterwards fell sick, While I am aware that sickness can, indeed, constitute a good cause warranting the granting of extension of time, (see Bertha Mjawa vs. Happy Japhet Kwilabya [2025] TZCA 718 (TanzLII), citing the case of Hamis Macha Sancho vs. Joyce Bachubila [2017] T7CA 1343 (TanzLII)), every case should be determined based on its facts and circumstances. In the present case, the record does not show that it was only Mr. Mosha who having fallen sick on the 5/8/2024, who could have filed the intended application for reference within the period of seven days granted to the applicants by this Court in their Civil Application No. 233/01 of 2023. As rightly argued by Ms. Msuya, the advocate who appeared in Court on

1/8/2024 or any other in the law firm of Mr. Mosha could have filed the requisite application timely. In her submission, Ms. Msuya submitted, and rightly so, that, there was no affidavit sworn by Mr. Kaizer Msosa to indicate that he was only holding brief of Mr. Mosha when he appeared in court on 1/8/2024. In the case of Ramadhani 1 . Kihwani (supra), this Court was clear to the point that, in an application for enlargement of time, like the present one, all material persons should swear an affidavit to enable the Court to properly exercise its discretion under Rule 10 of the Rules. Since there is no indication that Mr. Kaizer was only holding brief for Mr. Mosha on the date when he appeared in Court to receive the ruling of the Court, himself or any other advocate could have filed the application within the prescribed time. Moreover, as the annex TAB 11 indicates, Mr. Mosha was only exempted for three days due to illness. There is no evidence elsewhere indicating that such exemption was ever extended beyond the three days to cover the rest of the days he stated he was sick and nowhere was it evinced that no other advocate in Mr. Mosha's office could have taken up the assignment in compliance with the Court Order. It is worth noting that, in the case of Lyamuya Construction Company Ltd., (supra), this Court made it open that, in an application for extension of time, an 10

applicant must have exhibited diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. In my view, I do not consider the failure exhibited by Mr. Mosha to assign the case file to another advocate in his firm, including perhaps Mr. Kaizer Msosa who appeared in Court on the 1/8/2024 and received the order which required his clients to file the intended reference application within seven days, to be an act exhibiting a sense of diligence. What I see is the contrary and, for that reason, I do not think that this application should succeed. It should not and I proceed to have it struck out as I hereby do for failure to provide sufficient cause for the delay. It is so ordered. DATED AT DODOMA THIS 26™ day of August, 2025. D. J. NANGELA JUSTICE OF APPEAL Ruling delivered this 27th day of August, 2025 in the presence of Ms. Felix Mutaki, learned counsel for the Applicant, and Ms. Lighteness Msuya, learned Senior state Attorney for the Respondent, through virtual court, is hereby certified as a true copy of the original.