Alex Msama Mwita vs Emmanuel Nasuzwa Kitundu & Another (Civil Application No. 906/17 of 2023) [2025] TZCA 862 (14 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DOPOMA CIVIL APPLICATION NO. 906/17 OF 2023 ALEX MSAMA M W ITA ..................................................................... APPLICANT VERSUS EMMANUEL NASUZWA KITU N D U ......... ................................1 st RESPONDENT W.W.F TANZANIA PROGRAM O FFIC E ................................ 2 nd RESPONDENT (Extension of Time to file Revision form from the Ruling of the High Court of Tanzania at Dar es Salaam) fAwadhi. J.’l dated the 7th June, 2019 in Misc. Land Application No. 66 of 2019 RULING 26th May &. 14th August, 2025 MURUKE. J.A.: Alex Msama Mwita, the applicant, has moved the Court by a Notice of Motion under Rule 10 Tanzania Court of Appeal Rules 2009 (the Rules) for extension of time to file Revision on a ruling of the High court dated 7th of June 2019. The application is supported by an affidavit sworn by the applicant himself. On the other side 2n d respondent filed affidavit in reply sworn by Mr Lucason Maiga, her principal officer while the 1st respondent did not file any despite service. From the nature of this application, background of the dispute is necessary. The brief facts of this case are that it was alleged at the trial

court that the 1st respondent wanted to purchase a landed property but had no money. The 2n d respondent tent him USD 500,000 with interest of USD 100,000 on condition that the Certificate of Title would remain as security until the debt had been repaid in full. Failure of which the landed property would be the property of the applicant. Upon obtaining the money, the 1st respondent allegedly purchased the suit premises from the 2n d respondent. According to him he was told that the said Company was winding up and so they were selling their properties. Having managed to transfer the Certificate of Title with No. 22284 unto his name, he handed the same to the applicant as security. The 1st respondent failed to repay the loan which he acquired, the applicant thus demanded to be handed over the suit premises. It was when the applicant went to take possession of the same and wanted to sell the suit premises then the 2n d respondent became aware of the said sale and refused to have sold the suit premises to anybody. It was also realized that their Certificate of Title was missing. The 2n d respondent reported the incident at Kawe Police Station. It was followed by police arresting the applicant and took the Certificate of Title as well as the sale agreement that was sent for verification of the signatures of the sellers. It was found that the signatures there on had been forged. As these findings were communicated to the Registrar of Titles, he rectified the Certificate of Title

and transferred the ownership back to the 2n d respondent. The applicant was unhappy with the Registrar action of returning the tittle to the 2n d respondent, he thus filed Land case no 35 of 2014 at the High court land division praying for the following relief: (a) Declaration order that the 1st respondent has defaulted to perform h is p art o f the agreem ent (b) Declaration order that the applicant is in law fulpossession and ownership o f the su itprem ises and is legally entitled to remain in possession o f the su it prem ises com prised o f Certificate o f Title No. 22284. (c) An order fo r perm anent injunction restraining the respondents, their respectively workers, agents, servants and any other person whomsoever from trespassing or interfering with the property in any m anner detrim ental to the applicant's interest and rights in the property. (d) For the respondent to pay General damages fo r breach o f the loan agreem ent and inconvenience caused by the breach to be assessed by this Hon. Court. (e) Both respondents challenged the claim s in their written statem ents o f defence and prayed fo r the dism issal o f the su it with costs. After determination of the Land Case No. 35 of 2014 the applicant was declared the lawful owner of the suit premises. The respondents were ordered to jointly pay the applicant general damages at the sum of Tshs. 200,000,000/= with a monthly interest at Court rate from the date of judgment to the date of full payment and costs of the suit. It was

further ordered that in the alternative the 2n d respondent was at liberty to repossess the suit premises by buying it from the applicant if they can reach an agreement. The decision was delivered on 17th August 2017. After the Judgment of the High court, the applicant and the 2n d respondent signed deed of settlement on the satisfaction of the decree on land case No 35 of 2014 on 5th December 2018 and filed in court on 6th December 2018. For reason to be adduced latter, the said deed of settlement on the variation of the decree is here by reproduced below:- Whereas, the above named Plaintiff instituted in this Court the above mentioned Land Case No. 35 of 2014 praying for Judgment and Decree against the Defendants jointly and severally as follows; a) An order fo r paym ent o f USD $ 600,000 being the Principal sum plus interest due under the loan agreem ent b) O r in alternative, to (a) the landed property on P lo t No. 126, M sasani Beach Area in Kinondoni M unicipality D ar es Salaam City com prised under Certificate o f Title No. 22284 be sold to realize the am ount due. c) An order fo r perm anent injunction restraining the Defendants, their respective workers, agents servants and any other persons whomsoever from interfering with and o r disturbing the P la in tiff from peaceful enjoym ent o f the su it property. d) For the Defendant to p ay general damages fo r breach o f the loan agreem ent and inconveniences caused by the breach to be assessed by this Honourable Court. e) Interest a t the Com m ercialrate o f 31 % from 2 ffh November, 2012 to date o f Judgm ent

f) Interest o f the decretal sum a t the rate o f 12% from the date o f Judgm ent t ill paym ent in full. g) For paym ent o f costs o f the case. h) Any other re lie f (s) that the Hon. Court m ay deem fit. WHEREAS, the above mentioned suit came for Judgment on the 8th day of September, 2017 before Hon. S. A. N. Wambura, J. and delivered by Hon. F. Mahimbali-DR in the presence of Mr. Mwaheka Advocate for the Plaintiff and in the presence of Kanonyele Advocate for the 1st Defendant and Anjela Paul Advocate for the 2n d Defendant. WHEREAS, the Honourable Court did order (decree) that; 1 . The P la in tiff is d e d a re d a s th e la w fu l o w n e r o f th e s u it p re m ise s. 2. The D e fe n d an ts to jo in tly p a y th e p la in tiff g e n e ra l dam ages a t th e sum o f Tshs. 2 0 0,000,000/'= w ith a m o n th ly in te re s t a t C o u rt ra te fro m d a te o f p ro n u n cia tio n o f th e Ju d g m e n t to th e d a te o f fu ll paym ent. 3. The D efen d an ts w ere jo in tly condem ned to p a y c o sts o f th e s u it. 4. In th e a lte rn a tiv e th e 2nd D efen d an t is a t lib e rty to re p o sse ss th e s u it p re m ise s b y b u yin g it fro m th e P la in tiff i f th e y can re ach an agreem ent. AND WHEREAS, the Plaintiff is out of his own volition willing to settle the decree with its contents in to under the terms herein under stipulated; 5

1 . That, th e P la in tiff/D e c re e H o ld e r is o u t o f h is ow n v o litio n w illin g to s e ttle th e decree in te rm s h e re in b e lo w in fa v o u r o f th e 2nd D efen d an t/Ju d g m en t D ebtor. 2. That, th e P la in tiff/D e c re e H o ld e r s h a ll b y sig n in g th is D eed o f S e ttle m e n t im m e d ia te ly g iv e va ca n t p o sse ssio n to th e p ro p e rty d e scrib e d u n d e r th e T itle D e e d /C e rtifica te o f O ccupancy N o. 2 2 2 8 4 P lo t N o. 126, M sa sa n i B each A re a in K in o n d o n i M u n ic ip a lity D a r e s S alaam C ity a s h is d e a r re co g n itio n a n d ackn ow led g m en t o f th e fa c t th a t th e 2nd d e fe n d a n t/ju d g m e n t D e b to r is th e rig h tfu l o w n e r o f th e s u it la n d . 3. T hat th e P la in tiff/D e c re e H o ld e r b y sig n in g th is d eed o f S e ttle m e n t w a ive s a n y cla im a s d e cre e d a g a in st th e 2nd D e fe n d an t/Ju d g m e n t D e b to r in th e s a id d e cre e in c lu d in g p aym e n t o f th e m oney o rd e re d in th e d ecree to g e th e r w ith in te re s t th e re o f o r c la im fo r co sts. 4. That, im m e d ia te ly upon re g is tra tio n o f th is D eed in th is C ourt, w ith o u t a n y excu se w h atsoever, th e P la in tiff/D e c re e H o ld e r s h a ll h an d o v e r le g a l a n d p h y s ic a l o w n ersh ip o f th e s u it la n d b a ck to th e 2nd D e fe n d a n t/Ju d g m e n t D e b to r w ith o u t a n y co n d itio n s w h atso ever a n d s h a ll s e ttle a ll b ills a n d o th e r lia b ilitie s in re sp e ct o f th e s u it lan d . 5. T hat p u rsu a n t to th e fo reg o in g , a fte r sig n in g th is deed, th e P la in tiff/D e c re e H o ld e r s h a ll im m e d ia te ly a n d u n co n d itio n a lly g iv e va can t p o sse ssio n o f th e s u it la n d in fa v o u r o f th e 2Pd d e fe n d a n t/ju d g m e n t d ebtor.

6. T hat th e P la in tiff/D e c re e H o id e r s h a ll ta k e o v e r th e b an k lia b ility , if a n y in re sp e ct o f th e s u it la n d i.e p ro p e rty co m p rise d u n d e r C e rtific a te o f T itle N o. 22284.
7. T hat b y sig n in g th is D eed th e P la in tiff/D e c re e H o ld e r c e rtifie s th a t th e D ecree in la n d C ase N o. 3 5 o f 2 0 1 4 is h e re b y fu lly s a tis fie d /s e ttle a n d h e s h a ll a t n o tim e in th e fu tu re a tte m p t to e xecu te th e sam e.
8. T hat th e 2nd D efen d an t/Ju d g m en t D e b to r a cce p ts th e h a n d o ve r o f th e su it/a n d fro m th e P la in tiff/D e c re e H o ld e r u n co n d itio n a lly .
9. T hat th is D eed s h a ll b e re a d a n d co n stru e d in acco rd an ce w ith th e la w s o f th e U n ite d R e p u b lic o f T anzania a n d m a rkin g th e s a id d ecree s e ttle d u n d e r th e term s h erein ab ove. Same was followed with recording of deed of settlement by the High Court on 7th June 2019. It is this ruling on recording of deed of settlement that applicant is intending to file revision but find himself out of time, thus present application for extension of time. At the hearing of the application before me, Mr. Agustino Kusalika learned counsel appeared for the applicant and Mr. Kennedy Mgongolwa, also learned counsel represented the respondent. Upon being called to elaborate on the application, Mr Kusalika adopted the Notice of Motion and the supporting affidavit to form part of his oral argument, and submitted that, the application is predicated under Rule 10 of the Rules

which empower the Court upon good cause being shown by the applicant, to extend the time limited by the Rules or by any decision of the High Court or Tribunal, for the doing of any act authorized or required by the Rules, whether before or after the expiration of that time. Applicant counsel submitted that main reason why they intend to challenge in revision is that applicant signed Deed of Settlement under coercion and fraud by the 2n d respondent and other authorities. The applicant has been barging to be paid USD 300,00 by the 2n d respondent without success causing the applicant to suffer irreparable loss following the illegal Settlement Deed for variation of the Decree. It was further submitted by Mr. Kusalika that the delay in filing the application for revision was not occasioned by negligence of the applicant, but due to the 2n d respondent promised to pay the applicant USD 300,000, being final settlement. Thus all along the applicant has been waiting for payment to be effected for one year and 4 months. Upon being asked clarification question by the Court as to whether there is any clause in the deed of settlement of the decree committing the 2n d respondent to pay applicant, Mr. Kusalika replied that there is none, but insisted that there was fraud in the process of recording deed of settlement on variation of 8

the decree which they intend to challenge by revision once granted extension of time. The applicant's counsel submitted further that, in affidavit in support of the application established that a delay occurred when the Court struck out two earlier applications prosecuted by the applicant. The striking out of the said two applications also caused the delay. Winding up his submission, Mr. Kusalika, urged the court the Court to grant the application for extension of time for the applicant to challenge fraud and coercion. On his part Mr. Mgongolwa learned counsel for the 2n d respondent, at the outset informed the Court that applicant has not adduced sufficient cause to warrant extension sought to file revision. In respect of counting of the entire period of delay, respondent's counsel submitted that the applicant has not accounted for the entire period as reflected in paragraph 13 of the affidavit in reply. Amplifying further, the respondent's counsel reiterated content of paragraph 13 of the reply affidavit and submitted that filing of several incompetent applications that were struck out cannot be good ground for extension of time. If anything, it is demonstration of pure negligence on the part of the applicant who was dully represented. In the respective

nature of the grounds raised by the applicant in support of the application for extension of time, applicant must well show diligence, and not negligence or in action on the prosecution of the action that intend to take insisted Mr. Mgongolwa who then pressed for the application to be dismissed with cots for lack of sufficient cause. In a short rejoinder applicant counsel insisted on issue of illegality as the reason for the Court to grant extension based on fraud and coercion in the cause of signing deed of settlement of variation of the decree. Having heard both sides, the issue for determination is whether the applicant has adduced sufficient cause to warrant the Court to exercise its discretion to extend time. Pursuant to Rule 10 of the Rules, for an application of extension of time to be granted, the applicant is required to show good cause for the delay. The said Rule provides that: "The Court upon good cause shown, extend the tim e lim ited by these Rules or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the doing o f the act; and any reference in these Rules to any such tim e sh a ll be construed as reference to that tim e as so extended". 10

It is also important to underscore here that, under the above cited provisions, what the applicant is required to do is to show good cause for delay to move the Court to grant the application. This stance has been taken in a number of decisions which include the case of Kalunga & Company Advocate v. National Bank of Commerce Limited, (2006) T.L.R 235. It is the discretion of the Court to extend the time in which to take any step once out of time. Such discretion, however, must be exercised judicially. In exercising its discretion, of whether or not to grant extension of time the Court is required to consider the following factors which may not be exhaustive, but at the moment they include, that: (a) Accounting a ll period o f delay; (b) D elay should not be inordinate; (c) The applicant m ust show diligence and not a party, negligence o r sloppiness o f the action that he intends to take; (d) I f the Court sees that, there are other su fficien t reasons, such as existence o f point o f law o f sufficient im portance such as the ille g a lity o f the decision sought to be challenged. It is trite law that, in an application for extension of time to succeed, the applicant has to account for each day of the delay, however slight it may be. In the case of Bushiri Hassani v. Latifa Lukio Mashayo (Civil Application No. 3 of 2007) [2008] TZCA 220 the Court stated that: li

"...D elay o f even a sin g le day, h a s to b e a cco u n te d fo r otherwise there would be no poin t o f having rules prescribing periods within which certain steps have to be taken. "(Emphasis added) Same principal was stated in the case of Ndorosi Siatoi v. Veredian John (Civil Application No. 161/02 of 2024) [2024] TZCA 1080: "... it was established that, fo r a good cause to be shown , the applicant m ust account fo r each day o f the delayed days and express whether he was diligently in conducting the m atter. See B u s h iri H assan v. L a tifa M ashayo, C ivil Application No. 2 o f 2007 and Vodacom Fo u n d atio n v. C o m m issio n er G e n e ra l (TR A), C iv ilApplication No. 107/20 of2017(both unreported)." Equally so, the Court in the case of Rashid Said Kautipe v. Zoeb F. Kadarbhai & Another (Application No. 19/17 of 2022) [2024] TZCA 254. "As regards such other leg al requirem ent, it is trite law that, in order an application fo r extension o f tim e to succeed, the applicant has to account fo r each day o f the delay, however slig h t it m ay be. For instance, in B u s h iri H assan v. L a tifa L u k io M ashayo, C ivil Application No. 3 o f 2007 (unreported), the Court stated that: 12

"... D elay o f even a single day\ has to be accounted fo r otherwise there would be no p oin t o f having rules prescribing periods within which certain steps have to be taken. "(Emphasis added) Counting of each day of the delay in an application for extension of time was also cemented in the case of Masato Manyama v. Lushamba Village Council (Civil Application No. 274/08 of 2024) [2025] TZCA 34, "...as explained above, the law is settled. In an application fo r extension o f tim e each day passed beyond prescribed tim e has to be counted for. In the case o f B u s h iri H assan v. L a tifa L u k io MashayOf and application No. 3 o f 2007 (unreported) Court stressed that: "Delay, o f even a single day, has to be accounted fo r otherwise there would be no poin t o f having rules prescribing periods within which certain steps have to be taken." In the case at hand, a ruling sought to be challenged on revision was delivered on 7th June 2019, in the presence of both parties representative. Applicant filed Misc Civil application No 538/17 of 2020 for extension of time on 13th December 2020 that was struck out on 24 October 2022. Clearly there is no counting of days of delay from 7 June 2019 when ruling was delivered to 13th December 2020 when Misc. Civil 13

application No 538/17 of 2020 was filed a period of more than 18 months. Two; In terms of paragraph 11 of affidavit in support of the application , Mr Msama filed another application for extension of time Misc Civil application No 672/17 of 2022, that was withdrawn on 13th November 2023. It is not said when was the application filed after the first one being struck out for the Court to count days of the delay. Three; Failure by the applicant to account what was taking place on each date from the date of the ruling 7th June 2019, to the date of filing present application on 1st December 2023, cannot be accepted, bearing in mind the matter has been in Court since 2014, promptness was a matter of necessity. In Law of Limitation, each day passed beyond prescribed time counts and it has to be accounted for. Failure to do so, it is hard for the Court to exercise powers vested to under rule 10 of the rules. Four; The applicant has raised issue of illegality in the ruling of the High Court as one of the ground to seek extension in that there were fraud and coercion on the part of the applicant in the cause of signing deed of variation of the decree. With respect to the applicant's counsel, illegality must be on the face of the records. There is nothing in the affidavit in support of the application in relation to fraud because fraud need to be pleaded and proved. Mere allegations that there was fraud it is not enough to prove illegality that must be on the face of record. 14

Five; The applicant has also raised issue of coercion to constitute illegality as ground for extension of time. Again, here there is no any particulars in the affidavit, let alone proving such an averments. At paragraph 6 of his affidavit applicant has averred that 2n d respondent and other authorities exhibited coercion without any particular and more so, without even mentioning these other authorities. With respect to applicant, there are no sufficient facts to constitute coercion to amount to illegality as ground for extension of time. The position that, illegality must be on the face of record, was insisted in the case of Lyamuya Construction Company Limited v. Board of Registered Trustee of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 513 3 October 2021 TanzLII Court observed that: '1 S in ce e v e ry p a rty in te n d in g to a p p e a lse e k s to ch a lle n g e a d e cisio n e ith e r on p o in ts o f la w o r fa cts, it ca n n o t in m y view , b e s a id th a t in V A LA M B IA S case, th e c o u rt m e a n t to d ra w a g e n e ra l ru le th a t e v e ry a p p lic a n t w ho d e m o n strate s th a t h is in te n d e d a p p e a l ra is e s p o in ts o f la w sh o u ld , a s o f rig h t, b e g ra n te d e xte n sio n o f tim e if h e a p p lie s fo r one. The C o u rt th e re em p h asised th a t su ch p o in t o f la w m u st b e th a t o f s u ffic ie n t

im p o rta n ce and, I w o u ld a d d th a t it m u st a/so b e a p p a re n t on th e fa ce o f th e re co rd , su ch a s th e q u e stio n o f ju ris d ic tio n ; n o t one th a t w o u ld b e d isco v e re d b y a lo n g draw n a rg u m e n t o r p ro cess". Reading affidavits for and against the application, issue of illegality of decision sought to be challenged as raised by the applicant counsel not only is not on the face of record but also cannot justify failure by the applicant to account for each day of the delay. To accept the applicant assertion, will be to bless the delay by the applicant hiding under the shield of illegality. The same issue of illegality not being used as shield for not counting days of delay was discussed in the case of Mtengeti Mohamed vs Blandina Macha (Civil Application No.344 of 2022) [2023] TZCA 17328, "It is needless to say that, by any standard, the present application has been brought after a considerable delay which has not been accounted for. In view o f this, I would but reiterate here what this Court held in the case o f W illia m K a sia n N ch im b i a n d th re e o th e rs v. A b a s M faum e S e ka p a la a n d Two O thers, C ivil Reference No. 2 o f 2015 that, a s a s h ie ld to ille g a lity ca n n o t b e u se d h id e a g a in st in a ctio n on th e p a rt o f th e a p p lica n ts. And if I m ay add, the position

se t by our previous decisions is that, irrespective o f the nature o f the grounds advanced by the applicant in support o f an application fo r extension o f time, he m ust as w ell show diligence, and not apathy, negligence or ineptness in the prosecution o f the action that he intends to take. (See Lyam uya). [Emphasis added]" Six; Equally so, applicant has blamed the Court for causing delay by striking his two application. The blame is uncalled for, as applicant first application was found to be incompetent and second application was withdrawn at the instance of the applicant himself as averred at paragraph 10 and 11 of the applicant own affidavit in support of the application. To the contrary, it is the applicant himself to blame for filling incompetent applications twice. Seven; The applicant has also raised issue of promise to pay by the 2n d respondent which is not supported by any record as correctly admitted by Mr. Kusalika that there is no any clause on the promise to pay by the 2n d respondent on the signed deed of settlement on the variation of the decree reproduced above. Assuming there was any out of court settlement which is not on record, yet, negotiation outside the court are generally not considered as sufficient cause for granting an extension to file a case. See Mbogo and Another Vs Shah [1968] E.A 93.

In the end, the applicant has failed to adduce sufficient cause to justify granting of the extension of time sought to file revision to the Court. Thus, the application is dismissed with costs. DATED at DODOMA this 14th day of August 2025. Z. G. MURUKE JUSTICE OF APPEA Ruling delivered this 14th day of August, 2025 in the presence of Mr, Augustino Kusalika, learned counsel for the applicant and Mr. Kennedy Mgongolwa, learned counsel for the 2n d respondent both through Virtual fm irt;jrfjj§ j f p j^ f ie d as a true copy ofthe original. xr E. G. MRANGl ENIQR DEPUTY REGISTRAR COURT OF APPEAL 18