Regional Manager, TANROADS Kagera vs Ruaha Concrete Company Limited (Civil Application No. 248/16 of 2024) [2025] TZCA 884 (26 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAA CIVIL APPLICATION NO. 248/16 OF 2024 REGIONAL MANAGER, TANROADS KAGERA.............................APPLICANT VERSUS RUAHA CONCRETE COMPANY LIMITED........ .......... ........... RESPONDENT (Application for extension of time to file a stay of the registration proceedings for an arbitral award in the High Court of Tanzania (Commercial Division) at Dar es Salaam ( Moris. J.1 ) Dated 7th day of March, 2023 in Miscellaneous Commercial Application No. 61 of 2023 RULING 21st July & 26th August, 2025 FIKIRINI. J. A.: This is an application for extension of time preferred under Rule 10 of the Tanzania Court Appeal Rules, 2009 (the Rules). The gist of the application is seeking an extension of time to file a stay of the registration proceedings for an arbitral award in the High Court of Tanzania (Commercial Division) at Dar es Salaam under Miscellaneous Commercial Cause No. 61 of 2023, before Hon. Moris, J. The respondent contests the application. Manjit Singh Sethi, the respondent's Company Principal Officer, filed an affidavit in reply in that regard, and the application was argued in Court. i

The background giving rise to this application is as follows: The parties entered into six (6) distinct construction contracts. The respondent failed to fulfil its contractual obligations, prompting the applicant to terminate the contracts. A dispute regarding the alleged termination was referred to arbitration. On 28th September 2005, the Arbitrator issued an arbitral award in favour of the respondent. Subsequently, on 13th April, 2006, the Arbitrator corrected typographical errors in the arbitral award at the joint request of both parties. Dissatisfied with the outcome, the applicant filed a petition on 6th October, 2006, seeking to set aside the arbitral award. However, the petition was struck out due to the applicant's failure to attach the arbitral award itself. Meanwhile, on 5th September, 2006, the respondent filed the corrected arbitral award for registration in the High Court of Tanzania at Dar es Salaam. The applicant objected to the registration, arguing that the filing was time-barred. On 19th April, 2013, the High Court struck out the registration application on the ground of being time- barred. 2

The applicant successfully appealed to the Court of Appeal. In its judgment dated 5th October, 2020, the Court held that the limitation period commenced from the issuance of the original final arbitral award in November, 2005. It further held that proceedings filed out of time ought to have been dismissed rather than struck out. Despite this binding decision, proceedings in Miscellaneous Commercial Cause No. 221 of 2022 before the High Court (Commercial Division) continued. Contrary to its directive to hear the extension of time application concurrently, the Court proceeded to hear only preliminary objections. On 29th August, 2023, the High Court, purporting to act "in the interest of justice," granted the respondent leave to register the arbitral award. Aggrieved, the applicant sought leave to appeal, contending, inter alia, that the High Court erred by: (i) re-opening a matter previously adjudicated as time-barred; (ii) granting registration of the arbitral award without affording the applicant an opportunity to be heard; and (iii) striking out the application while simultaneously extending time within the same proceedings.

Following the ruling of 29th August 2023, the respondent proceeded to file for registration of the arbitral award on 9th October 2023 under Miscellaneous Application No. 6 of 2023. In response, the applicant challenged the application on multiple grounds, namely: (i) violation of public policy; (ii) lack of jurisdiction; (iii) premature referral to the arbitral registration; and (iv) impermissible proceedings in contravention of the binding decision of the Court of Appeal dated 5th October, 2020. In light of these objections, the applicant sought a stay of Miscellaneous Application No. 6 of 2023 pending the determination of its appeal. The applicant contended that proceeding with the registration would cause irreparable prejudice, estimated to exceed USD 1 billion, and would effectively render the appellate process nugatory. Present at the hearing on the date scheduled were Miss Rehema Mtulya, Mr. Hemed Mkomwa, Miss Frida Mollel, Mr. Carol Chami, all learned State Attorneys and Mr. Gulisha Mwanga, learned Senior State Attorney from Tan Roads. On the respondent's side, Mr. Eric Kanga, a learned advocate, appeared for the respondent.

Ms. Mtulya addressed the Court on behalf of the applicant's legal team. She commenced her submission by formally adopting both the notice of motion and the affidavit in support thereof. The remainder of her submission focused on the legal requirement that the applicant must demonstrate sufficient cause to warrant the granting of the application. In doing so, she referred the Court to the guiding principles established in Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 02 of 2010 [2011] TZCA 4 (3 October 2011; TANZLII). The conditions set out in that case are:

1. The delay must be fully accounted for;
2. The delay must not be inordinate;
3. The applicant must demonstrate diligence and show no signs of apathy or negligence; and
4. The existence of an apparent illegality may constitute sufficient cause. The learned State Attorney submitted that the applicant had satisfied these conditions. She explained that following the High Court ruling 5

dated 29th August, 2023, granting the respondent an extension of time to file and register the arbitral award under Miscellaneous Commercial Cause No. 61 of 2023, the applicant was summoned on 24th February 2024 to show cause why the arbitral award should not be registered as a court decree. The applicant reacted after the service of notice to show cause and, on 15th April, 2024, lodged the present application, which was after sixty-three (63) days after the summons. During this period, the applicant, being a government department, was engaged in consultations with other relevant institutions. The learned State Attorney argued that this explanation adequately accounted for the delay. On the second condition, that the delay must not be excessive, she contended that the delay was occasioned by the time taken to receive the summons and the subsequent need for institutional consultation. She emphasized that the applicant acted promptly in challenging the registration of the arbitral award. Addressing the third condition, she maintained that the applicant had demonstrated diligence throughout the process, actively engaging with the matter and taking necessary steps without undue delay.

In addition to satisfying the above three conditions, the learned State Attorney submitted that the application was further supported by the existence of an apparent illegality, as outlined in paragraph 24 of the applicant's affidavit. In support of this submission, she cited National Housing Corporation & 3 Others v. Jin Lang Li, Civil Application No. 432 of 2017 [2021] T7CA 68 (12 March 2021; TANZLII), which reaffirmed the principle established in Principal Secretary, Ministry of Defence & National Service v. Devram Valambhia [1992] T.L.R 185, that illegality can constitute sufficient cause for extension of time. In conclusion, the learned State Attorney prayed for the application to be granted based on the applicant's compliance with the established legal criteria and the presence of illegality warranting judicial intervention. Reacting to the submissions and contesting the grant of the application, the learned counsel featuring for the respondent, prefaced his address by adopting the affidavit in reply filed on 17th July, 2025 and accordingly served upon the applicant.

Acknowledging the powers vested in the Court to extend time, he signalled that those powers must be exercised judiciously in line with judicial reasoning and not out of whim and/or arbitrariness. The learned counsel, relying on the Lyamuya Company Construction Limited (supra), conceded that sufficient cause is what governed the grant or otherwise of the application for extension of time. Condition to warrant the granting of the application for extension of time, of which the applicant has failed to fulfil any of the conditions. Referring to paragraph 15 of the affidavit in support, the ruling permitting the registration of the arbitral award was delivered on 29th August, 2023, followed by the petition for registration of the arbitral award lodged on 9th October, 2023. Counting from when the respondent applied for the registration of the arbitral award to when the application for extension of time was lodged on 15th April, 2024, totals 218 days unaccounted. The applicant's count made from 24th February up to 15th April, 2024, totalling sixty (63) days, was according to the learned counsel, incorrect. The learned counsel further contended that, besides accounting for the days of delay, a party is required to account for each day of the delay that the applicant could not account for. And counting from 8

9th October, 2023, up to 15th April, 2024, which is about two hundred (200) days, is a fairly inordinate delay. The learned counsel underscored that the delay showed negligence in pursuing the present application. Apart from the factors stated in the Lyamuya Construction Company Limited case (supra), the learned counsel submitted that the reason for the extension of time was that the applicant intends to challenge the ruling dated 29th August, 2023. He contended that this was not a sufficient reason, particularly since the applicant had lodged a notice of appeal on 1st September, 2023. Following the lodgement of the notice of appeal, the applicant was required to comply with Rule 90 (1) of the Rules, which has not been pleaded and the said letter was not attached. He thus argued that, counting from 1st September, 2023, when the notice of appeal was lodged, almost six hundred and sixty-two (662) days had elapsed. And if the counting was to start from 27th November, 2023, when the applicant was to lodge the intended appeal, then the delay was of six hundred and two (602) days. Finally, the learned counsel argued, citing the case of Salim Said Mtokela v. Mohamed Abdallah Mohamed, Civil Appeal No.

149/2019, that parties are bound by their pleadings. In this case, the affidavit in support falls under that ambit. Contending that it is only a copy of the notice of appeal, which was attached, there was thus no point in discussing the issue of illegality, as the application before the Court is time-barred. Hence, prayed for the application to be declined and dismissed with costs. In her rejoinder, the learned State Attorney reiterated her earlier submissions but emphasized that the applicant was unaware of the respondent's execution efforts until served with a notice to show cause on 12th February 2024. By that time, sixty-three (63) days had already elapsed. She maintained that the delay should be calculated from the date of service, not from the date of the respondent's filing. Addressing the respondent's contention regarding non- compliance with Rule 90(1) of the Court of Appeal Rules, the learned State Attorney submitted that such compliance was not the subject of the present application and was therefore irrelevant at this stage. She concluded by asserting that once illegality is established, further inquiry becomes unnecessary, as the Single Justice would lack jurisdiction to entertain the matter. On that basis, she urged the Court to grant the application without costs. 10

The sole issue before the Court is whether the applicant has demonstrated sufficient cause to warrant the grant of an extension of time. Under Rule 10 of the Court of Appeal Rules, the Court is vested with discretionary power to extend time upon a showing of good cause. This discretion must be exercised judiciously, guided by principles of reason and justice, not personal inclination. Although "good cause" is not explicitly defined in the Rules, judicial precedent has provided guiding criteria, notably in Lyamuya Construction Company Limited (supra), which emphasizes that each case must be assessed on its unique facts. In the present application, the respondent's execution application filed on 9th October, 2023, triggered a fourteen-day window for the applicant to seek a stay, expiring on 23rd October, 2023. The applicant's filing on 15th April 2024 resulted in a delay of 168 days beyond the prescribed period. In the absence of a convincing and detailed explanation accounting for each day of the delay, the Court finds the delay to be inordinate. This position is reinforced by the decision in Haidar li

Thabit Kombo & Others v. Abbas Khatib Haji & Others, Civil Application No. 2 of 2006, where a nine-month delay was deemed excessive due to the applicant's failure to account for each day. In the present application, the parties have relied on differing premises to calculate the period of delay. The Applicant contends that the delay spans sixty-three (63) days, calculated from the date of receiving summons on 12th February 2024 to the filing of the present application on 15th April, 2024. Conversely, the respondent argues that the delay should be computed from 9th October, 2023, the date the applicant became aware of the need to challenge the registration of the arbitral award. This latter date marks the appropriate point at which time began to run. The applicant's affidavit fails to adequately explain the period between 9th October, 2023 and 12th February, 2024, during which no action was taken to file for a stay, despite the prior filing of a notice of appeal on 1st September, 2023. The vague reference to "consultations with other institutions" lacks specificity and does not account for each day of the two-hundred-and-eighteen (218) day delay, as required under the principles laid down in Lyamuya Construction Company Limited (supra). 12

While the applicant argues that the delay was not inordinate due to the complexity of legal issues and institutional consultations, the failure to act promptly following the respondent's arbitral award registration filing suggests negligence. In Lyamuya Construction Company Limited (supra), delays far shorter than 218 days were deemed inordinate when not adequately explained. The applicant's justification lacks sufficient detail and fails to meet the threshold for "good cause." The respondent also contended that the Applicant failed to comply with Rule 90(1) of the Court of Appeal Rules by not attaching supporting documents to demonstrate steps taken in prosecuting the appeal. However, as rightly submitted by the applicant, the present application is governed by Rule 10, which concerns extension of time, not the substantive appeal process under Rule 90(1). The existence of a notice of appeal filed on 1st September, 2023, acknowledged by both parties, indicates an intention to appeal. Whether the applicant has complied with Rule 90(1) is a matter for the appeal proceedings and does not bar the grant of an extension under Rule 10. Beyond the requirement to account for delay and absence of negligence, the applicant raised a serious claim of illegality in the High 13

Court's ruling dated 29th August 2023. Allegations include reopening a time-barred matter, granting registration without a hearing, and issuing contradictory procedural orders. These concerns, as outlined in paragraph 24 of the Applicant's affidavit, merit judicial scrutiny. In National Housing Corporation & 3 Others v. Jing Lang Li (supra), the Court reaffirmed the principle from Devram Valambhia that demonstrable illegalities in the impugned decision constitute "good cause" for extension of time. The learned State Attorney argued that the High Court's repeated misapplication of the law, including striking out and then extending time on the same preliminary objection, granting registration of the arbitral award contrary to the Court of Appeal's ruling of 5th October, 2020, and proceeding without hearing the applicant, amounts to sufficient illegality to warrant indulgence. This sequence of events raises a clear point of illegality that warrants the attention of this Court. Granting the present application will allow the parties to address the Court on the merits of the alleged illegality. In Amour Habib Salim v. Hussein Bafagi (supra), the Court held that where illegality is alleged, it must extend time to ascertain and rectify the record if the illegality is established. 14

In light of the foregoing, I am satisfied that the applicant has demonstrated sufficient cause under Rule 10 of the Court of Appeal Rules. Accordingly, the application is granted. The Applicant is ordered to lodge the intended application for stay of registration of the arbitral award proceedings before the High Court within thirty (30) days from the date of this ruling. There shall be no order as to costs. 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 Ms. Victoria Lugenda, learned State Attorney for the Applicant and Mr. Erick Kanga, learned counsel for the Respondent, is hereby certified as a true copy of the original. I 15