Mwananchi Insurance Company Limited vs Tanzania Insurance Regulatory Authority & Another (Civil Application No. 253/16 of 2024) [2025] TZCA 888 (26 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 253/16 OF 2024 MWANANCHI INSURANCE COMPANY LIMITED ............... . ....... APPLICANT VERSUS TANZANIA INSURANCE REGULATORY AUTHORITY ........ . l STRESPONDENT THE ATTORNEY GENERAL................................................ . 2 nd RESPONDENT (Application for Extension of Time to file a Notice of Appeal against the judgment and decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (MakaniiJ.) dated 30th day of September, 2019 in Commercial Case No. 18 of 2017 RULING 22nd July & 26th A ugust, 2025 FIKIRINI. J. A.: The Applicant, Mwananchi Insurance Company Limited, is seeking an extension of time within which to file a notice of appeal out of time against the judgment and decree of the High Court of Tanzania, Commercial Division at Dar es Salaam, dated 30th September, 2019, in Commercial Case No. 18 of 2017. The application is brought under Rule 10 of the Court of Appeal Rules, 2009 (the Rules). i

The Notice of Motion, carries the following grounds: one, Civil Appeal No. 290 of 2020 which challenged the said decision was struck out for inadequacy of the record of appeal; two, the delay was caused by technical defects and health complications of the applicant's counsel; and three, no prejudice would be sustained by the respondents if the application is granted. The application is supported by the affidavit of Mr. Ephraem Christopher Mrema, the Applicant's Principal Officer, and two supplementary affidavits by Mr. Hussein Kitta Mlinga and Mr. Ndurumah Keja Majembe, both learned advocates. In opposition, the 1st Respondent filed an affidavit in reply sworn by Mr. Okoka Jairo Mgavilenzi, learned Principal Officer with the 1st Respondent. In addition, the Respondents filed two specific affidavits in reply to the supporting affidavits of Mr. Mlinga and Mr. Majembe, respectively. The facts giving rise to the application may briefly be stated as follows. The Applicant instituted Commercial Case No. 18 of 2017 in the High Court (Commercial Division) against the Respondents seeking, inter alia, TZS 55,235,848,036/= as specific damages and TZS 100,000,000,000/= as general damages for alleged unlawful refusal by the 1st Respondent to renew its insurance licence from 2014 onward.

The 1st Respondent contended that the decision not to renew the licence was lawful and grounded on regulatory compliance failures. The High Court dismissed the suit in its entirety on 30th September, 2019. The Applicant thereafter lodged Civil Appeal No. 290 of 2020 in this Court. On 4th July, 2023, that appeal was struck out for being incompetent on account of a defective record of appeal. In his affidavit, Mr. Mrema avers that the Applicant did not receive any notice of the striking out, and only became aware of the ruling on 15th August, 2023, through a newspaper article in the Daily News. Attempts to contact its advocate, Mr. Mlinga, were unsuccessful, and the Applicant later learned that he had been hospitalized during the relevant period. The Applicant thereafter engaged Fortis Attorneys on 17th August, 2023, and the new counsel obtained the ruling from the TanzLII website the next day. On 23rd August, 2023, the applicant applied for extension of time before the High Court (Commercial Application No. 129 of 2023), which was dismissed on 15th March, 2024. Hence, the present application filed on 28th March, 2024. 3

In his affidavit in reply, Mr. Mgavilenzi disputed the claim that the Applicant was unaware of the striking out. He averred that the matter was public and available online immediately after the ruling was delivered. He further contended that the Applicant was negligent in failing to follow up on its own appeal and that the illness of counsel, unsupported by cogent evidence, should not be used as a shield to justify the delay. In the reply to Mr. Mlinga's affidavit, the Respondents challenged the sufficiency of the explanation offered, pointing out that no proper accounting for each day of the delay was made. They maintained that the Applicant failed to exercise diligence, and the delay was self- inflicted. Similarly, in reply to Mr. Majembe's affidavit, the Respondents challenged the assertion that the Applicant acted promptly, arguing that the Applicant waited over a month to act after learning of the striking out. Under Rule 83(2) of the Court of Appeal Rules, a notice of appeal has to be lodged within thirty (30) days from the date of the judgment or order intended to be appealed against. Once an appeal is struck out and the statutory time has lapsed, a fresh notice can only be filed with leave of the Court under Rule 10 of the Rules.

In the present case, the original appeal was struck out on 4th July, 2023. The present application was filed on 28th March, 2024, after the applicant had pursued Commercial Application No. 129 of 2023 before the High Court, which was dismissed on 15th March, 2024. As such, the application is competent. The central issue for the determination of this matter is whether the applicant has demonstrated good cause to warrant the Court's exercise of discretion under Rule 10 of the Rules. It is a trite law that the Court has discretionary powers to extend time. However, those powers for extending time are both wide-ranging and discretionary; it is exercisable upon good cause being shown. It may not be possible to lay down an invariable or constant factors such as the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent, whether there is point of law of sufficient importance such as the illegality of the decision sought to be challenged. This has always been the position of the Court for many years as reflected in the number of cases such as Dar es Salaam City Council v. Jayantilal P. Rajani, Civil Application No. 27 of 1987; Tanga 5

Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001; Eliya Anderson v. Republic, Criminal Application No. 2 of 2013; and Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) to name a few. For instance, in Lyamuya's case (supra), the Court set out the principle that the Applicant must account for every day of the delay; that the delay should not be inordinate; that the Applicant must demonstrate diligence and not apathy or negligence; and that the intended appeal must raise an arguable case. The Respondent has argued that the application is incompetent because it included the affidavit of Advocate Hussein Kitta Mlinga, which was not part of the High Court record in Commercial Application No. 129 of 2023. They submit that Rule 45A requires the application before this Court to mirror the one presented to the High Court. The Applicant submitted that the grounds in the present application, technical defects and counsel's health complications, are not consistent with those raised before the High Court, with the affidavit of Advocate Mlinga providing additional context to explain the delay.

Rule 45A (1) provides: "45A (l)W here an application for extension o f tim e to: (a) lodge a notice o f appeal; (b) apply for leave to appeal; or (c) apply o f a certificate on a point o f law, is refused by the High Court, the applicant may, within fourteen days o f such decision , apply to the Court for extension o f time: Provided that such an application sh all be made on same grounds relied upon before the High Court , " This rule entails that the applicant applying for a second bite application for extension of time must comply with two conditions: One, he has to file his application for extension of time within 14 days, and two, the application should be made on the same grounds relied upon before the High Court. Looking at the application at hand, the Applicant has complied with the first condition regarding time. In the present application, the original appeal was struck out on 4th July, 2023. The present application was filed on 28th March, 2024, within the 14-day period required by rule 45A (1) of the Rules, after the applicant had pursued Commercial Application

No. 129 of 2023 before the High Court, which was dismissed on 15th March, 2024. Unfortunately, the Applicant did not comply with the second condition. At the High Court, the Applicant had two affidavits in support of the application. Those sworn by Ephraem Christopher Mrema and Ndurumah Keya Majembe. In the instant application, the Applicant has added one affidavit that was sworn by Hussein Kitta Mlinga, which offended Rule 45A (1) of the Rules. Therefore, it is my considered view that the said affidavit of Mr. Mlinga should be expunged. The Court should proceed with determining the application based on the two available affidavits. In my considered opinion, had the affidavit of Mr. Mlinga been presented before the High Court Judge, it could have provided additional information that might have supported the granting of an extension of time. Reverting to the issue of whether the Applicant has adduced sufficient reason to warrant the grant of the application. Applying those principles laid in the Lyamuya case to the present case, the ruling striking out the appeal was delivered on 4th July, 2023. The Applicant claims it became aware of the ruling on 15th August, 2023, and took prompt action by engaging new counsel on 17th August and retrieving 8

the ruling on 18th August, 2023. On 23rd August, the applicant filed an application before the High Court, which remained pending until 15th March, 2024. Thereafter, the present application was promptly filed on 28th March, 2024. Given that part of the time was spent pursuing a similar application in another court, it cannot be said that the delay was inordinate. With respect to the requirement to account for the delay, I will not labour much on this issue for an apparent reason. While the Respondents contend that this delay is unaccounted for, the affidavits of Mr. Mrema explain that the delay from 4th July to 15th August, 2023, was due to the applicant's lack of awareness of the ruling and the illness of its former counsel. The explanation is supported by medical documents (MIC-10). This Court has held in numerous cases that illness supported by evidence may constitute sufficient cause. In that regard, I am of the humble opinion that since the Applicant has provided proof of a medical report of Mr. Mlinga, it cannot be overstated that it has accounted for the delay to the satisfaction of the law.

As to whether the applicant acted diligently, the record demonstrates that upon becoming aware of the ruling, the applicant took immediate steps to engage a new counsel within two days and filed an application before the High Court five days later to pursue its right to appeal. Though that application was dismissed, the time spent in pursuing it is relevant. In that regard, therefore, there is no evidence of sloppiness or inaction. On the contrary, the Applicant demonstrated vigilance in pursuing its remedy, including the unsuccessful application before the High Court. I am alive to the argument raised by the Respondents that the Applicant has not accounted for every single day of the delay. However, the Applicant has offered a coherent narrative of the events, and the delay was partly occasioned by the illness of counsel and the time spent on the first application. The Respondents' reliance on Jubilee Insurance §nd Lim Han Yung is distinguishable. In Jubilee Insurance, the delay was attributed solely to the advocate's negligence. In contrast, here, the delay stems from a combination of technical defects and counsel's 10

medical incapacity, which was beyond the Applicant's control. In Urn Han Yung, the applicant failed to follow up on their case, but the Applicant here acted promptly upon learning of the ruling, engaging new counsel and pursuing legal remedies. I also wish to reaffirm that although what amounts to sufficient cause has not been defined, as has always been pronounced by this Court, there are several factors to be taken into account. They include whether or not the application has been brought promptly, the absence of any valid explanation for the delay, and the lack of diligence on the part of the applicant. This was the position in the case of Tanga Cement Company Limited (supra). As regards prejudice, the Respondents have not demonstrated any specific harm they are likely to suffer should the application be granted. It is also not disputed that the intended appeal involves significant commercial and regulatory issues. Whether or not the applicant will succeed is not for determination at this stage. In the foregoing, I am convinced that the Applicant has demonstrated good cause to warrant the exercise of the Court's discretion under Rule 10 of the Court Rules. 11

In light of the above discussion, I find the application for extension of time to lodge a notice of appeal to be meritorious. Accordingly, grant it and order that thirty (30) days from the date of this order the Applicant must lodge the notice of appeal. 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 Mr. Deusdedit Lutesa, learned counsel for the Applicant and Ms. Victoria Lugenda, learned State Attorney for the Respondents, is hereby certified as a true copy of the original. r r r o v o Ufcl U i£ f e v l l i P > # DEPUTY r e g is t r a r y // COURT OF APPEAL 12