Nathanael Mwakipiti Kigwila vs Magreth Andulile Bukuku (Civil Appeal No. 5 of 2023) [2025] TZCA 849 (12 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: NDIKA. J.A.. KENTE. J.A.. And MANSOOR. J.A.T CIVIL APPEAL NO. 5 OF 2023 NATHANAEL MWAKIPITI KIGWILA ................................................. APPELLANT VERSUS MAGRETH ANDULILE BUKUKU..................................................... RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, Land Division at Dar es Salaam) (Mweneaoha. J.~ ) dated the 31s t day of March, 2022 in Miscellaneous Land Application No. 381 of 2021 JUDGMENT OF THE COURT 2SfhJuly & 12t hAugust, 2025 NDIKA. J.A.: Nathanael Mwakipiti Kigwila, the appellant, challenges the decision of the High Court of Tanzania at Dar es Salaam in Miscellaneous Land Application No. 381 of 2021 dated 31s t March 2022. In that ruling, the court denied his application for extension of time to apply for setting aside ex parte judgment in favour of the respondent, Magreth Andulile Bukuku, that it had rendered in Land Case No. 40 of 2018 on 26th May 2020. In a nutshell, this dispute's history is as follows: To be recognised as the lawful owner of landed property known as Plots No. 256/1, 257/1, and 258, Block A, Salasala, Kunduchi, Kinondoni Municipality in Dar es Salaam, the respondent filed a summary suit against the appellant in the High Court (Land Case No. 40 of 2018). The matter properly went to exparte proof after i

the appellant was granted leave to defend the action but failed or neglected to lodge his written statement of defence. Based on the evidence, the court declared the respondent the rightful owner of the contested property and entered an ex parte judgment with costs for her on 26th May 2020. In addition, the court granted the respondent TZS. 10,000,000.00 in general damages and mandated that the appellant leave the property within 30 days of the judgment's delivery. Undoubtedly, the appellant was not present when the said judgment was rendered. There is no question that he was not given any notice of the date the judgment was supposed to be delivered. The appellant filed Miscellaneous Land Application No. 383 of 2021 in the High Court for an extension of time to apply for the ex parte judgment to be set aside because it appears that he only learnt about its existence later, during the execution of the ex parte decree, after the limitation period for seeking to set aside the judgment had passed. In that motion, the appellant aimed to persuade the court that the contested ex parte judgment was clearly illegal and that the delay entailed was warranted. He was unsuccessful in that endeavour, as previously mentioned, which is why he is now appealing. With the assistance of his advocate, Mr. Ashiru Hussein Lugwisa, the appellant filed three grounds that essentially bring up two issues: 2

1. Whether the High Court erred in iaw and fact in dismissing the application despite the appellant's reasonable explanation o f the cause o f the delay.
2. Whether the High Court erred in iaw and fact in dismissing the application despite proofthat the expartejudgment was manifestly illegal particularly because the appellant was not served with a notice o f delivery o f the said ex parte judgment Regarding the first issue, Mr. Lugwisa censures the High Court for misinterpreting the appellant's justification for the delay in taking necessary measures following the contested ex parte judgment's delivery. Referring to paragraphs 11 through 16 of the founding affidavit, he argues that the appellant took a number of proper actions after learning of the aforementioned decision on 3r d March 2021, which led to the filing of the application for an extension of time on 29th July 2021. He specifically claims that the learned High Court judge incorrectly determined that the accountable delay lasted for one year and two months, rather than starting on 3rd March 2021, when the appellant learnt of the judgment's existence. He bases his argument on Stephen Ngalambe v. Onesmo Ezekia Chaula & Others [2022] TZCA 130, in which the court determined that, under specific conditions, a delay, say for eleven days, was not unreasonable. Mr. Mwang'eza Mapembe, who is responding on behalf of the respondent, concurs with the High Court's ruling. Referring to paragraph 12 of the supporting affidavit, he argues that the appellant learnt of the contested decision on 22n d February 2021, rather than 3rd March 2021, and

that no explanation of his actions since then until 29th July 2021 when he filed the application that is the focus of this appeal, has been provided. According to him, each day of the delay should have been accounted for, as held in Bushiri Hassani v. Latifa Lukio Mashayo [2008] TZCA 220. Certainly, in paragraphs 11 to 16 of his supporting affidavit, the appellant attempted to provide the following explanation for the delay: "11. That on I3 h November2020 the respondent lodged an application for execution o f her decree, by which she sought to have me evicted from the suitpremises subsequent to which I was served with the said application on J d March, 2021 at 13:40 hours.... 12. That I desperately sought assistance o f another law firm and instructed them to pick up the matter from where it was. They appeared in court on 22nd February 2021 and found out that an ex parte judgment and decree had been issued against me, and further that the respondent was now seeking the court's assistance to evict me from the suit premises. 13. That my lawyer furtherperused the court file to enable them to assess the best solution under the circumstances. 14. In the meantime, my wife, Gloria Kyonjola Kigwila, initiated objection proceedings to protect 4

her interest in the matrimonial property which was lined up for sale without her involvement 15. That, however, during the pendency o f the objection proceedings, the respondent [...] unlawfully evicted me and my relatives from the suit premises and vandalized my properties. 16. That my wife above-named complained o f the trespass in court and eventually on lf f hJune 2021 the court ordered[the respondent] to allow me and my wife back into the matrimonial property until the objection proceedings were determined....". In light of the opposing arguments made by the parties' counsel, the learned High Court judge took into consideration the above averments. In her decision, which is found on page 261 of the appeal's record, she concluded as follows: '% therefore, agree with the respondent's counsel that, it is obvious that the applicant has not well accounted for the period he delayed. He has stayed idle for the period o f one year and two months, without taking any action. That period is counted from the date when the impugned decision waspronounced, on 2&hMay, 2020, to the date when this case was filed, that is 29h July, 2021. His failure to account for this period o f delay is a mistake... 5

On our end, we have reviewed the aforesaid averments, the High Court's ruling, and the counterarguments presented to us. The following observations and conclusions, in our opinion, cannot be disputed. First, despite Mr. Lugwisa's insistence that the appellant learnt of the ex parte judgment on 3rd March 2021 as stated in the above-quoted paragraph 11, it is clear from paragraph 12 that his advocates had already appeared in court on 22n d February 2021, regarding the execution proceedings pertaining to the contested decree. Based on this information, it can be assumed that the appellant knew about the contested ex parte judgment from his advocates on 22n d February 2021. We, therefore, support Mr. Mapembe's contention that the time of delay should be calculated from 22n d February 2021, rather than 3rd March 2021, even if we concur with Mr. Lugwisa that the High Court incorrectly calculated the period of accountable delay from 26th May 2020, when the contested ex parte judgment was issued. Secondly, the appellant mentions an unnamed "law firm" and "lawyers" he hired to pursue legal redress on his behalf in paragraphs 12 and 13 of the supporting affidavit. In addition to not revealing their identities, he has not provided a specific timeframe for when the engagement was created, and the actions they performed in furtherance of his pursuit. We find it disingenuous that the appellant has held back this information. Thirdly, the above paragraphs reveal nothing but dilatory conduct on the part of the appellant. In our view, he dawdled from 22n d February 2021 6

until 29th July 2021 when he applied for extension of time. No appropriate action was taken for over five months. The averment that his wife pursued certain objection proceedings is clearly beside the point. It did not preclude him from instituting a motion for extension of time as soon as he became aware of the ex parte judgment. Accordingly, we resolve the first issue against the appellant. We turn to the second issue. Its foundation is the averment in paragraph 17 of the supporting affidavit as follows: "17. That on further perusal o f the court record, it was discovered by my advocates on 22n d June 2021 that there were some irregularities in the court proceedings which call for immediate intervention by the court, to wit: a) The Court did not issue a notice to me on the date o f pronouncement o f its judgment. b) On l& h July 2019, the court ordered that I should be personally served with a summons when my former lawyer, Mr. Kama/a, withdrew from the conduct o f the matter. But I was never notified, contrary to the court order. c) That, on l& h December 2019, the court ruled that the case was not supposed to be filed as a summary suit but instead o f striking it out, it allowed the respondent to proceed ex parte as if it were an ordinary suit." The learned High Court judge was entirely unconvinced in her ruling. She believed that none of the purported illegalities were of substantial significance or apparent in the record. 7

Relying on Cosmas Construction Co. Ltd v. Arrow Garments Ltd. [1992] T.L.R. 127 and Tropical Air (Z) Ltd v. Godson Eliona Moshi [2025] TZCA 175, Mr. Lugwisa contends that the delivery of the ex parte judgment by the High Court without notifying the appellant of the date appointed for the pronouncement of the judgment was a fatal omission that constituted an illegality. He argues, in addition, that the suit was not fit from the beginning to proceed under the summary procedure and that it was a further illegality that it was subsequently processed as an ordinary claim in violation of the law after the trial court had acknowledged the aforesaid initial procedural infraction. On the other hand, Mr. Mapembe highlights the fact that while the appellant described the purported violations in paragraph 17 of the supporting affidavit as mere "irregularities," his learned counsel proceeded to categorise them as "illegalities" in his submissions. Mr. Mapembe argues that the alleged irregularities are neither illegal nor evident on the face of the record, citing MS. Speed Security Limited v. Hussein Abdallah Kaniki & Others [2024] TZCA 311, Hamza K. Sungura v. The Registered Trustees of Joy in the Harvest [2023] TZCA 17324, Ramadhani Omary Mbuguni (A Legal Representative of the Late Rukia Ndaro) v. Ally Ramadhani & Others [2024] TZCA 344, and Stephen Ngalambe {supra). He is adamant that there was no significant procedural violation that would have invalidated the ex parte judgment simply because the appellant was not served with notice of its supposed date of delivery. 8

At the forefront, we acknowledge the settled jurisprudence that an extension of time may be granted if it is established that there is a point of law of sufficient importance, such as the illegality of the decision sought to be challenged, even if the period of delay is not accounted for: see Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185. See also VIP Engineering and Marketing Limited, Tanzania Revenue Authority and Liquidator of TRI- Telecommunications (T) Ltd v. Citibank (T) Ltd, Consolidated Civil References No. 6, 7 and 8 of 2006 (unreported). Even though the Court did not define illegality in its landmark decision in Devram Valambhia {supra), a Justice of the Court clarified in Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania [2011] TZCA 4 that a claim of illegality must be both significant and evident on the record: "Since every party intending to appeal seeks to challenge a decision either on point o flaw or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points o f law should as o f right be granted extension o f time if he applies for one. The Court there emphasized that such point o f law must be that 'of sufficient importance' and, I would add that it must be apparent on the

face o f the record, such as the question o f jurisdiction; not one that would be discovered by long drawn argument or process." [Emphasis added] Relevantly, in Charles Richard Kombe v. Kinondoni Municipal Council [2023] TZCA 137, which was referred to in Ramadhani Omary Mbuguni {supra) relied upon by Mr. Lugwisa, this Court defined the term "illegality" as "an act that is not authorized by law" or "the state o fnot being legally authorized', quoting Black's Law Dictionary, 11th Edition. The Court then extracted a passage, with approval, from a decision of the Supreme Court of India in Keshardeo Chamria v. Radha Kissen Chamria & Others AIR 1953 SC 23, 1953 SCR 136: "... the words " illegally " and "material irregularity" do not cover either errors o f fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects o f procedure and not to errors o f either law or fact after the formalities which the law prescribes have been complied with" [Emphasis added] The Court in Charles Richard Kombe {supra) finally concluded that: 10

"From the above definitions, it is our conclusion that for a decision to be attacked on the ground o f illegality, one has to successfully argue that the court acted illegally for want o f jurisdiction or for denial o f the right to be heard or that the matter was time-barred". [Emphasis added] Based on the foregoing, we are of the opinion that a claim of illegality regarding any contested decision for the purpose of a motion for extension of time, is a grievous and substantial breach of law or procedure that affects the validity of the case's resolution and outcome. It surpasses insignificant errors or irregularities. Although both "irregularity" and "illegality" indicate deviations from established procedure, illegality is a more substantial violation of law or procedure, potentially rendering the decision in question a nullity. Put differently, an illegality is indicative of a significant flaw in the judicial process or decision-making (Keshardeo Chamria, supra). Beginning with the appellant's claim of illegality stemming from the pronouncement of ex parte judgment without notice, we recall that his trump card is Tropical Air (Z) Ltd {supra) for the proposition that failure to serve such notice on the party against whom the suit proceeded ex parte is fatal. To be clear, Tropical Air (Z) Ltd {supra) relied on Cosmas Construction Co. Ltd {supra) and Abutwalib Musa Msuya & Others v. Capital Breweries Ltd & Others [2016] TZCA 549 as the basis of its conclusion. 11

To place the issue in the right context, we should point out that in Cosmas Construction Co. Ltd {supra), a single Justice of the Court made a statement of principle that a party against whom a suit proceeded ex parte is entitled to a notice of the judgment date so that he may attend to take it if he so desires. For if aggrieved, he may wish to seek redress, which includes an application to set aside the ex parte decision. Since in that case, the applicant was not furnished with any notice and the judgment was delivered in his absence, the learned Justice indicated that the applicant could have been granted extension of time to seek the ex parte decision set aside had he provided proof of the date when he became aware of the decision and accounting for the delay that followed thereafter. Regarding Abutwalib Musa Msuya {supra), we note from it that this Court declared the High Court's ex parte proceedings and the resulting judgment invalid as a cumulative effect of three irregularities: first, the trial court's order for substituted service of the amended plaint on the first and second defendants was irregularly issued. Secondly, there was an egregious error in the learned trial judge's order dated 18th February 2009, which permitted the plaintiffs to use affidavits as proof of all the claims made in their amended plaint. Lastly, the trial court omitted to inform the defendants of the ex parte judgment's delivery date. After carefully examining the situation, we are inclined to believe that the third irregularity mentioned above would not, by itself, render the ex parte proceedings and the resulting judgment void. Holding differently would be illogical since it would imply that 12

the validity of the trial proceedings and the resulting decision would be negatively impacted retroactively. Considering the foregoing, we support Mr. Mapembe's argument that the trial court's failure to notify the appellant of the ex parte judgment's delivery date was a procedural omission rather than an illegality. If all else had been equal, the appellant would have been forgiven for delaying seeking a remedy until after learning of the ex parte judgment. He will take on the responsibility of explaining the delay from that point on. The second and third irregularities complained of are similarly irrelevant. We do not see how the legality of the contested exparte judgment would be called into doubt if the appellant's former advocate had abruptly stopped participating in the High Court case. Furthermore, it is a manifest misinterpretation of the law and procedure to argue that the court improperly permitted the respondent to proceed ex parte as though it were a regular suit because it held that the suit should not have been filed and pursued under the summary procedure rather than being struck out. We concur with the High Court's finding that, even though the action may have been improperly filed as a summary claim, it became a regular suit after the appellant was given permission to contest the claim and lodge his written statement of defence. The alleged irregularity is obviously trivial. 13

Therefore, we are certain that the appellant's allegation of illegality did not meet the requirements to raise legitimate questions about the ex parte judgment. We ultimately hold that the appeal has no substance and dismiss it with costs. DATED at DAR ES SALAAM this 11th day of August, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 12th day of August, 2025 in the presence of Mr. Mwang'enza Mapembe, learned counsel for the respondent also holding brief for Mr. Ashiru Lugwisa, learned counsel for the appellant, is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRA COURT OF APPEALO 14