Pamela P. Bikatumba vs The Director ABB Tanalec Ltd (Civil Application No. 680/02 of 2023) [2025] TZCA 855 (12 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 680/02 OF 2023 PAMELA P. BIKATUMBA .......................................................... APPLICANT VERSUS THE DIRECTOR ABB TANALEC LTD......................... . ..........RESPONDENT [Application for Extension of time to file notice of appeal to Court against the decision of the High Court of Tanzania at Arusha] (Sambo, J.) dated the 16th day of September, 2008 in Civil Appeal No. 45 of 2007 RULING 1st & 12th August, 2025 KAIRO, J.A.: This dispute has got a long and chequered history. The parties have been up and down in various courts litigating since 1997. It all started when the applicant moved the District Court of Arusha in Misc. Application No. 7 of 2007 to order the respondent grant an application for execution of the decree in decision of the Labour Conciliation Board which decided that, the applicant be terminated effective from 17th June, 1997 and be paid all of her legal and statutory compensation stipulated therein. After hearing the parties, the District Court granted the application as prayed.

The responded was not amused and appealed to the High Court which partly allowed the appeal. It was now the turn of the applicant to be aggrieved, but was late to challenge it within the prescribed time. Thereafter, the battle by the applicant through filling various applications seeking to be allowed to knock the Court's door so as to challenge the High Court decision started. I wish to put it clear that, I will not list the fleet of all the applications filed. Suffice to state that, eventually the applicant was granted an extension of time to file the notice of appeal together with the appeal and accordingly lodged the appeal she all along craved for. However, the appeal was struck out on 19th February, 2016 for want of competence. Thus, she had to commence the process all over again, starting by praying for an extension of time to lodge the notice of appeal. Nevertheless, the up-hill was not easy to climb. The applicant thus filed Misc. Civil Application No. 103 of 2016 seeking to be granted an extension of time to lodge the notice of appeal to the High Court out of time. However, the same was dismissed on 2n d September, 2016 for lack of sufficient cause. Still adamant, the applicant on 18th August 2023 decided to file this application in Court seeking a similar relief on a second bite basis.

It is imperative to note that, pursuant to rule 45A (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), such an application is required to be filed within 14 days from the date when the High Court refused to grant the same. As to what caused such delay, the notice of motion and the supporting affidavit sworn by the applicant have explained what transpired in between. I will recapitulate the explanation so as to determine whether they constitute sufficient cause considering that, the applicant argued that they do, while in the respondent's view, they don't. As alluded to before, the respondent filed an affidavit in reply and a written submission opposing the application. According to her sworn affidavit, the applicant deponed that, though she was availed with the refusal order of the High Court, but before filing of the application in Court, she fell sick and went to different places seeking for medical treatment from traditional healers. In accounting the days of delay, the applicant attached several bus tickets when visiting various traditional healers at different places in search of the medicine to cure her disease which she did not disclose in her affidavit. 3

She further deponed that, it was not until 2n d September, 2020, a period of two years and eleven months that her health improved and returned to Arusha. She also revealed in her affidavit that, from 3rd September, 2020 she was preparing the documents in respect of Misc. Application No. 98 of 2021 which she eventually filed in Court on 21st September, 2021, that is 19 days later. Later on 14th August, 2023 the applicant withdrew it upon noticing a technical defect on the notice of motion and filed this application before me on 18th August, 2023. When the application was called on for hearing, Messrs. Gabriel Fidelis Rwahira and Elvaison Maro, both learned advocates, represented the applicant and the respondent respectively. In his oral submission, Mr. Rwahira repeated what was deponed by the applicant in her affidavit as above explained. He contended that, the applicant has been diligently and persistently in court corridors in search of her right. He referred the court to the case of Royal Insurance Tanzania Limited vs Kiwengwa Strand Hotel Limited, [2009] TZCA 195 TANZLII, to substantiate his arguments. The learned advocate also submitted that, the applicant has also been able to account for the days of delay which mainly were associated with her sickness. He went further to argue that, he is aware that, the granting of the application at hand is within the discretion of the Court

upon exhibition of sufficient cause by the applicant and that, he believes sickness is among the sufficient cause to warrant the grant of extension of time requested. He concluded by praying the Court to grant the application as prayed. Mr. Maro vehemently opposed the application. He submitted that, after the High Court's refusal to the applicant's prayer for extension of time in application No. 103 of 2016 on 2n d September, 2016, the applicant was required to file the same application before the Court within 14 days in terms of rule 45 A (1) of the Rules as a second bite application. He went on to submit that, it was in the applicant's affidavit in paragraph 20 that, she got the corrected copy of the refusal order on 2n d November, 2017, which means she would have been able to file the application by 17th November, 2017. However, he submitted, it was until 18th August, 2023 that she lodged this application, being the lapse of a total of 5 years and eleven months. Mr. Maro argued that, the period was inordinate and was to be accounted for. The learned advocate went on submitting that, though the applicant in paragraphs 21 and 23 deponed that, from 2n d November, 2017 up to 2n d September, 2020 was sick and getting treatment from traditional healers, but no medical chits to that effect were attached. Instead, he contended, the applicant attached bus tickets showing that

she went to various places outside Arusha. He contended that, the tickets attached shows that she was busy travelling from one place to another which according to him negates the claimed sickness and that even if she was, the sickness was not critical to make her fail to prepare and file the application. Moreover, even the nature and type of her ailment was neither stated in the affidavit, nor was it indicated therein that she was bed-ridden. Concluding on that point, Mr. Maro submitted that, the applicant was duty bound to bring evidence from the traditional healers who were attending her, to verify that assertion or from the relatives who were assisting her. Dismissing Mr. Rwahira's submission suggesting that the applicant was diligent as she immediately filed application No. 98 of 2021 soon after coming back from treatment, though was later withdrawn for technical defect, Mr. Maro argued that, the applicant cannot benefit from the defence of technical delay in this aspect as the withdrawal was necessitated by a defective notice of motion. He cited the cases of Philemon Mang'ehe t/a Bukine Traders vs Gesso Herbon Bajuta, Civil Application No. 141/02 of 2024 and Joyce Joram Lemanya vs Patricia Patrick Lemanya and Another, Civil Application No. 430 of 2021 to back up her arguments. In conclusion, he submitted that, the

applicant has failed to account for the period of two years and eleven months she claimed to be sick. He went on to submit that, the applicant further did not account for the period from when she withdrew the application on 14th August 2023 up to when she filed this application on 18th August 2023. He implored the Court to find the application unmerited and proceed to dismiss it for want of sufficient cause. In rejoinder, Mr. Rwahira insisted that, the applicant received the treatment from traditional healers, as such it was not easy to get the said medical chits. Besides, the traditional healers were various, thus it was not possible to have all of them swear an affidavit to that effect. Regarding the affidavits for relatives, he contended that they are far from Arusha and thus, it was not possible to get their affidavits. He also dismissed the argument that, there was no accounting of the period from withdrawal of the application to the filling of this application arguing that, the same was used for preparing the application. On the cited cases, Mr. Rwahira left it to the wisdom of the Court and reiterated his prayer to have this application granted. In determining whether or not this application is meritorious, I will start by examining the provision upon which the applicant can move the 7

Court to grant the extension of time. That is rule 10 of the Rules which also this application is predicated on. It reads as follows: - "The Court may, upon good cause shown extend the tim e lim ited by these Rules o r by any decision o f the Court o r tribunal, fo r the doing o f any a ct authorized o r 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 a reference to that tim e as so extended." As to what exactly constitutes "good cause" has been left to the discretion of the Court. Essentially, there is no hard and fast rule in establishing it. Nevertheless, the case of Lyamuya Construction Company vs. Board of Registered Trustee of Young Women Christian Associated of Tanzania, Civil Application No. 2 of 2010 (unreported) has laid down some factors to be considered when determining "good cause". These are as follow: - "(a) The applicant m ust account fo r a ll the period o f delay, (b) The delay should not be inordinate; (c) The applicant m ust show diligence, and not apathy, negligence or sloppiness in the prosecution o f the action that he intends to take; and 8

(d) I f the Court feels that there are other su fficien t reasons, such as the existence o f a p o in t o f law o f su fficien t im portance; such as the ille g a lity o f the decision sought to be challenged." [Also see Richard Moses vs. Republic, Criminal Application No 1 "B" of 2015 and Zahara Kitindi and Another vs. Juma Swalehe & Nine Others, Civil Application no 4/05 of 2017 (both unreported). In the matter at hand, the delay was associated with the sickness that stricken the applicant for about two years and eleven months. It is not disputed that the applicant has not attached any medical chit to verify her assertion. Instead, she attached various bus tickets showing her travels from one place to another for what she stated to be in search of her wellness. I have no qualms with her decision to get medicines from traditional healers, nor do I intend to look down upon their services in healing patients. I also do not object the explanation that they don't possess medical chits to verify that they attended the applicant and in fact, I did not expect a different explanation on that aspect. However, I am of the view that, the long-time the applicant used to get the said treatment while knowing that, the time was running against her, would have made the applicant to see the necessity of having a more tangible and convincing document, like an affidavit from

at least one of the traditional healers to verify that he attended the applicant. Besides, if that was not possible as submitted by Mr. Rwahira, then the relatives who were escorting/assisting her when going to those places would have sweared an affidavit to that effect. However, the applicant did not produce anything to verify her sickness apart from the bus tickets which in my view do not link her sickness and the travels she made. No wonder Mr. Maro, was of the view that, the travels negate the aspect of being sick, and if at all she was, then not too sick to make her fail to prepare and file the application within the time stipulated, to which I concur with. On that account, the blanket statement as regards her health state with no tangible documents to prove, shows that the applicant was not diligent but sloppy and negligent in pursuing what she believed to be her right. To say the least, none of the factors stipulated in Lyamuya's case were exhibited by the applicant to demonstrate good cause for delay to make this Court exercises its discretion to extend the time sought. That apart, even if it is assumed that the applicant was sick for all those years, still unaccounted time from when she withdrew the application to when she filed it again is another snag on her part. I will explain: The applicant has stated that, after coming back from the treatment on 2n d September, 2020, she started to prepare for 10

application No. 98 of 2021 and filed it on 21st September, 2020, the period which Mr. Rwahira considered prompt and exhibits diligence. With much respect, I do not agree with him. Simple arithmetic shows that, the application was filed after the lapse of 19 days. Considering that the application for a second bite was required to be filed within 14 days, needless to say that, it was filed beyond the time required. As if that was not enough, there was no accounting as to how the 19 days were spent apart from the blanket statement that they were used for preparing the application. The law is long settled that, a delay of even a single day has to be accounted for. [See: Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported)]. On that basis, I am convinced that, she has failed to exhibit sufficient cause to make the Court exercise its discretion to grant the extension of time sought. Having in mind that, this is a very long-time matter, I wish, before ending to instructively restate the renown latin maxim that, "interestei re i publicae u t s it fin is iitiu m " that is, public demands that, litigation must come to an end so that parties can proceed with other productive endeavours. Insisting on the said latin maxim, the Court in Bank of Tanzania vs Said Marinda and Three Others, Civil Reference No. 3 of 2014 (unreported) observed as follows:- ii

"Always any step in which a p arty to any proceedings intends to take, m ust be taken w ithin a prescribed tim e so that litigation should come to an end - hence the /atin maxim interestei re i publicae u t s it fin is litiu m " All considered, I find the applicant has failed to demonstrate any good cause for delay that would have entitled her the grant of the prayers sought, this application therefore fails and is accordingly dismissed. Being a labour matter, no costs is awarded DATED at DODOMA this 7th day of August, 2025. L. G. KAIRO JUSTICE OF APPEAL The Ruling delivered this 12th day of August, 2025 in the presence of Mr. Gabriel Rwahira, learned Counsel for the Applicant and Mr. Thomas Kessy learned Counsel holding brief for Mr. Elvaison Maro learned Counsel for Respondent, both through Virtual Court from High Court Arusha is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 12