Fredrick Anthony Mboma vs Serikali ya Mtaa Kibangu & Others (Civil Application No. 322/01 of 2024) [2025] TZCA 889 (26 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 322/01 OF 2024 FREDRICK ANTHONY MBOMA, APPLICANT VERSUS SERIKALI YA MTAA KIBANGU... UBUNGO MUNICIPAL COUNCIL ATTORNEY GENERAL ............... 1st RESPONDENT 2n d RESPONDENT ,3* RESPONDENT (Application for extension of time to file an appeal against the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) 23rd July & 26th August, 2025. FIKIRINI. J. A.: Fredrick Anthony Mboma, hereinafter referred to as (the Applicant) seeking an extension of time to institute an appeal against the High Court of Tanzania (Main Registry) at Dar es Salaam, decision dated 5th May, 2023 in Miscellaneous Cause No. 39 of 2022. The application is brought under Rule 10 of the Tanzania Court of Appeal Rules, 2009, (the fMzuna. J.^ Dated 5th day of May, 2023 in Miscellaneous Cause No. 39 of 2022 RULING l

Rules) and is supported by an affidavit sworn by the Applicant on 6th May 2024. Facts leading to the present application can be summarized as follows: the Applicant approached the High Court seeking leave to file judicial Review against the decision of the Seri kali ya Mtaa wa Kibangu, which refused the request to name one of the streets in the Applicant's father’s name, Mboma, a decision which was made on 20th February, 2022. The Applicant, thus, moved the High Court under Rule 5(2) of Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 and Section 84A of the Interpretation of Laws Act, Cap 1 R.E 2019. The application was dismissed. On 2n d June, 2023, the Applicant filed Miscellaneous Civil Application No. 18 of 2023 in the High Court, seeking leave to appeal. This application was struck out on 11th August, 2023, due to a defective affidavit On 1s t September, 2023, the Applicant filed Miscellaneous Civil Application No. 30 of 2023, seeking a review of the High Court's decision. This was dismissed on 8th March, 2024, for want of merit. On 11th March, 2024, the Applicant submitted an application via the Case Management System (CMS) for an extension of time to apply for leave 2

to appeal. The application was not entertained as the requirement for leave was no longer a legal requirement as per section 10 of the Legal Sector Laws (Miscellaneous Amendments) Act, 2023. Besides, the delay was caused by filing of the above named application for leave, the Applicant cited personal circumstances, including criminal complaints filed against him in March 2024, the hospitalization and subsequent death of his father between 25th March, and 11th April, 2024, and the grieving period thereafter. At the hearing on 23r d July, 2024, the applicant appeared unrepresented, whereas on the respondents' part present were Ms. Victoria Lugendo and Mr. Francis Wisdom, both learned State Attorneys. Submitting in support of the application, the Applicant argues that the delay in instituting the appeal was due to a combination of diligent pursuit of related applications and unforeseen personal circumstances. From 2n d June, 2023 to 12th March, 2024, the Applicant pursued three applications (Miscellaneous Civil Application No. 18 of 2023, Miscellaneous Civil Application No, 30 of 2023, and the CMS application). Additionally, the Applicant faced significant personal challenges from 13th March, 2024 to 5th May, 2024, including criminal complaints requiring his attention at multiple police stations and courts, the

hospitalization of his father from 25th March, to 11th April, 2024, his father's death on 11th April, 2024, and the subsequent grieving period until 5th May, 2024. Regarding the issue of illegality, the applicant contended that the issue of illegality has not been pleaded in the affidavit, but has been discussed on page. 23 of the record of this application. Based on the four corners of the affidavit, he prayed for the annexed ruling to be examined in respect of the affidavit deposed. For the above grounds, it was arguedby Mr. Mboma that sufficient cause has been established to warrant the extension of time. He therefore prayed for the application to be granted. Ms. Lugendo, was straightforward that on the application for extension of time, the prerequisite is to furnish sufficient cause. Relying on the case of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Association of Tanzania (Civil Application No. 02 of2010) [2011] TZCA 513(3 October 2011; TANZLII), the learned State Attorney, contended that the Applicant had not fulfilled any. Despite filing his notice of appeal timely, furnished with requested proceedings in compliance of Rules 83 (1), 90 (1) and (3) of the Rules, the Applicant could not file his intended appeal 4

timely. And in order for the this application to be granted, the Applicant had to satisfy the condition set out in Lyamuya Construction Company Limited (supra) of which none had been fulfilled. Instead, the Applicant had been wasting time to pursue wrong remedies, which is not a good cause. The learned State Attorney cited the case of Dominic Ishengoma v. Geita Gold Mine, Civil Application No. 146/08 of 2020, in which the Court faced with the same scenario declined grant of the application. And even, when reference was sought in Civil Reference No. 8 of 2023, the Court upheld the Single Justice decision. Addressing the issue of ignorance of law, she contended that was not a defence, arguing that the Applicant's pursuit of wrong remedies should not be considered. Moreover, the Applicant had all the available avenues including consulting the Deputy Registrar when he was faced with electronic filing issues in terms of Rule 24 (5) & (6) of the Electronic Filing Rules, but could not consult. And on the criminal charges alleged, there was no cogent proof. She equally challenged illegality raised which could have constituted as a good cause, as not pleaded in the notice of motion or affidavit. 5

In short, the learned State Attorney, dismissed completely the Applicant's submission and implored upon the Court to dismiss the application for extension of time sought. Rejoining, the Applicant maintained that he had advanced sufficient reasons warranting grant of the application. The Court's power to extend time is governed by Rule 10 of the Rules, which grants discretion to extend time limits where sufficient reason is shown. What the Court is thus, invited to determine is whether the application has passed the test and deserve to be granted. I have gone through the argument of both parties, notably there are two reasons adduced by the Applicant to be the cause for the delay and the sufficient cause to warrant grant of the extension of time sought. The first reason was that he was faced with personal circumstances, including criminal complaints filed against him in March, 2024, the hospitalization and subsequent death of his father and grieving period that followed. And the second reason is illegality. In discussing the first ground on what caused the delay, of which the Applicant assigned a number of reasons. One, he contended that there 6

were a number of unsuccessful applications lodged. Two, while the applications were going on, Police pursued him for criminal charges, which required him to attend police. Third, he alleged that he had his sick father to attend to, who unfortunately passed on. Following the passing on, funeral and so on, the Applicant took, sometime to grieve. All these hindered him to pursue his case. Fourth, the Applicant alleged illegality, though was not pleaded. On 2n d June 2023, the Applicant filed Miscellaneous Civil Application No. 18 of 2023 in the High Court, seeking leave to appeal. Fie argued that he accounted from 2n d June 2023 to 12th March 2024. All the stated reasons are sensible, however, when it come to extension of time, the Applicant is expected to account for each day of the delay. A broad account of time line of events explaining the delay is necessary. It is the settled position of the law that for the Court to extend time, every day of delay must be accounted for. See- Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 and Bariki Israel v. Republic, Criminal Application No. 4 of 2011 (both unreported), in which the Court underscored that a delay even of a single day must be accounted. 7

Examining the reasons advanced by the applicant, in which he attempted to explain the period during which the decisions were ready, from 5th May, 2023, to 16th March, 2024, while acknowledged but persuaded by the learned State Attorney's argument that all this time the Applicant had been seeking for a wrong remedies. A good example, is the application for leave to appeal, when it was struck out, he filed another appiication for review against the decision of the High Court, and later he filed an application for extension of time to file leave to appeal on 11th March, 2024, while there was no requirement of leave. While admitting to the misstep, the Applicant contended that the delay of 87 days on the pending application for leave should not be blamed on the Applicant alone. It should be shared with the court, which was aware of the changes in the law. This, in my view is a piece in a long delay caused by the Applicant's several applications. The main reason ascribed to the Applicant's delay is in my view his pursuit of wrong remedies, rather than anything else. He wasted much of his time there. His inaction or taking a wrong route cannot be justified as a valid use of the entire period spent in court. This Court, at a different time, ruled that pursuing wrong remedies is not a good cause. See the case of Dominic 8

Ishengoma v. Geita Gold Mining, Civil Application No. 146/8 of 2020 . Even if the Court was to look closely and favourably at the period from 25th March, 2023 to 16th March 2024, the claims remain unsupported by any evidence. There are gaps within this timeframe that are not accounted for. For example, from 11th August, 2023, when his first application was struck out, to 1s t September, 2023, when he filed Misc. Application No. 30 of 2023, the intervening period was not accounted for, additionally, even after the dismissal of Misc. Application No. 30 of 2023, from 8th March, 2024 to 11th March, 2024, those two days were not accounted for. Furthermore, on 12th March, 2024, when his application for an extension of time was filed on the basis that there was no need to file leave to appeal to the Court of Appeal, he did not account for the period in between, until he filed the Notice of Motion on 16th March, 2024. Overall, the period from 25th May, 2023 to 16th March, 2024 contains days that have not been appropriately accounted for, as demonstrated above. Also, from 13th March, 2024 to 5th May, 2024, the applicant indicated that he faced significant challenges that prevented him from filing his application on time. He was dealing with a criminal complaint and the 9

serious illness of his father, who was hospitalized and subsequently passed away on 11th April, 2024. The Respondent contested these reasons, arguing that the applicant lacked proof of the criminal charges and was not constantly with his father, as he was able to report to the police station regarding the alleged charges. In response, the Applicant clarified that during the periods he was not with his father, his father was under the care of a nurse at the hospital or a house girl at home. Besides, the Applicant in his rejoinder indicated that his father's illness did not prevent him from moving between places, as he had assistance from a nurse and a domestic worker, which defeats the claim that his father's illness was one of the reasons that he could not follow up on his case timely. Similarly, the argument that he had a criminal case, was unsupported, as no evidence, such as a police case number or related documentation, has been provided beyond a guarantor's letter. The letter alone is insufficient to confirm whether it was submitted to the police or to verify the applicant's claim of providing a guarantee. Had the applicant provided correspondence from the police, it would have strengthened his argument. The absence of evidence regarding any 10

criminal case filed against him leaves the period from 13th March, 2024, to 19th April, 2024, unaccounted for. Additionally, during the hearing the Applicant admitted not to have provide proof of his interactions with the police but stated that such proof could be provided if required by the Court. This argument is an afterthought and cannot be accepted at this stage. Turning to the ground of illegality, the applicant alleged that there is illegality in the decision, noting that there is a defect in the Respondent's affidavit. He referred the Court to page 23 of the record of this application; the applicant further prayed the Court to consider this argument, although he did not plead in his affidavit. And the respondent side contested this argument and prayed the Court not to consider it because it was not pleaded. As rightly argued by the learned counsel for the Respondents, the Applicant did not aver illegality in his affidavit in support of the application. On the contrary, this was raised during the Applicant's which purely a submission from the bar, which is worthless. In the case of Transafrica Assurance Co. Ltd v. Cimbria (EA) Ltd (2002) E.A 627 in which the Court stated that; li

"As is well known, a statement of fact by counsel from the bar is not evidence and therefore, the court cannot act on it". Running through the Applicant's affidavit; indeed, the alleged illegality was not pleaded. It is the principle of law that parties are bound by their pleadings, meaning you cannot submit issues that were not pleaded in the pleading. This position was stated in the case of Barclays Bank (T) LTD v. Jacob Muro, Civil Appeal No. 357 of 2019, CAT at Dar es Salaam, this Court observed that: 1 'We fee! com pelledat this point, to restate the time- honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored." Applying the above position in the circumstances of this case, the applicant is bound by his pleadings, and because he did not plead the issue of illegality in his pleading, he cannot present at this stage of the hearing. Assuming, which is of course not the case presently, that the said illegality has been pleaded, still the Court would have considered if the 12

alleged illegality was on the face of record, as propounded in Lyamuya Construction Company Ltd (supra). All said and done, I find no sufficient reason established by the Applicant warranting this Court to extend the time. The application is thus dismissed with costs for lack of merit. DATED at DODOMA this 26th day of August, 2025. P. S. FIKIRINI JUSTICE OF APPEAL Ruling delivered this 26th day of August, 2025 in the presence of the Applicant in person and Ms. Victoria Lugenda, learned State Attorney for the Respondents, is hereby certified as a true copy of the original. 13