Cornel Christopher Gombay and Another vs Getruda John Gunguyi (Civil Application No. 558/02 of 2024) [2025] TZCA 841 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA. CIVIL APPLICATION NO. 558/02 OF 2024 CORNEL CHRISTOPHER GOMBAY (Legal Representative of the Late CHRISTOPHER GWANDU) ............................................1S T APPLICANT BARNABAS DAFFI (Legal Representative of the Late DAFFI SLARHHI) .................... . .......................................2N D APPLICANT VERSUS GETRUDA JOHN GUNGUYI (Legal Representative of the late AWAKI SHAURI ................................................................ RESPONDENT (Application for extension of time for revision of the decision of the High Court of Tanzania, at Arusha) (Mussa. 3.^ dated the 30th day of November, 2007 in Civil Appeal No. 9 of 2003 RULING 25th July & 7th August, 2025 MDEMU. J.A.: This is an application for extension of time for revision of the decision of the High Court of Tanzania at Arusha, in Civil Appeal No. 9 of 2003. Before the hearing of the application could commence, Cornel Christopher Gombay submitted that, the Primary Court of Karatu in Probate Cause No. 14B of 2015 revoked the appointment of Norbert Christopher Gombay, the first applicant, to administer the estate of the late Christopher Gwandu, and he was appointed instead. He thus prayed i

to be impleaded in the proceedings as the first applicant. The prayer was not opposed by Mr. George Njooka, learned advocate for the respondent. On my part, I acceded to the unopposed prayer, consequently, Cornel Christopher Gombay was impleaded in Civil Application No. 558/2 of 2024 as the first applicant. Now to the application for extension of time. In the notice of motion and the supporting affidavit, mainly two grounds have been fronted for enlargement of time for revision. First is the illegality in respect of the Locus standi of the late Awaki Shauri in the land dispute and second is that, the right of the applicants to appeal to the Court has been blocked by judicial processes. The respondent, on the other hand, resisted the application by filing an affidavit in reply. At the hearing of the application on 25th July, 2025, the applicants, who appeared in persons, unrepresented, stood by the depositions in the joint affidavit together with the written submissions filed in that behalf. In the supporting affidavit and both in the oral and written submissions, mainly there are three grounds which the applicants believe will constitute sufficient cause to extend time for revision. One is the illegality relating to the locus standi of the late Awaki Shauri. Two is in respect of the acts of the applicant spending most of the time in court corridors, meaning that, the delay wasn't their fault and three, that the appeal processes

have been blocked through judicial processes due to the striking out of the notices of appeal earlier on filed by the applicants. Persuading me to grant the application on the three grounds forestated, the applicants also relied on the decisions of the Court in the Attorney General v. Emmanuel Marangakis (as the attorney of Anastansious Anagnostou) & Three Others (Civil Application No. 138 of 2019) [2013] TZCA 63 (24 February 2023; TanzLII). Specific on locus standi being an illegality in the impugned decision, thus constituting sufficient cause to enlarge time, they urged me to consider the decisions of the Court in the Registered Trustees of SOS Children's Villages in Tanzania v. Igende Charles & Nine Others (Civil Application No. 426/08 of 2018) [2022] TZCA 428 (14 July 2022; TanzLII) and that of Joseph Sylivester Mariangwe v. Jonas Samson Ndawanya (As an Administrator of the Estate of the late Paulina Samson Ndawanya (Civil Appeal No. 218 of 2022) [2024] TZCA 614 (19 July 2024; TanzLII). With the foregoing submissions, the applicants urged me to make a finding that, the instant application has merits, hence, I should proceed to allow it. Mr. George Njooka, learned advocate, entered appearance for the respondent. He resisted the application in the manner appearing in the depositions in an affidavit in reply and further in the written submissions

which he prayed to stand by it. He clarified a few points that, the application hinges on two grounds, that is, the illegalities complained and the delays actuated by staying in court corridors as from the year 2008. Submitting on the illegality relating to locus standi, Mr. Njooka argued that, the said illegality could not arise because the late Awaki Shauri filed Civil Case No. 45 of 1997 as the owner of the suit land and prayed to the trial court for the issuance of an eviction order in respect of the applicants. He thus submitted that, the complained illegalities do not legally exist as to require the application of the principles stated in John Harald Christer Abrahamson v. Exim Bank (T) Limited & Others (Civil Appeal No. 468/16 of 2022) [2024] TZCA 130 (27 February 2024; TanzLII). He thus cleansed the impugned decision from the complained illegalities. Regarding delays occasioned by the applicants' long stay in court corridors, Mr. Njooka conceded presences of several litigations in courts, but to him, such presence is not a ground for extending time for revision. He also submitted on the appeal being blocked by judicial processes. He forceful resisted that assertions because the applicants filed the first notice of appeal on 30th January, 2008 but it was struck out by the Court on 23rd September, 2014. Yet, another notice of appeal filed on 3rd December, 2015 was again struck out by the Court on 30th November,

2017. The learned counsel thus invited me to the usual principles that, extension of time is grantable only upon accounting for the days of the delay on the part of the applicant. His stance was staged in the case of John Harald Christer Abrahamson (supra). On that note, he urged me to dismiss the application with costs for being misconceived. In a brief rejoinder, the applicants had nothing useful to add save for reiterating what they submitted in chief. To them, revisional proceedings of the Court is the only forum where justice lies as opposed to appeal, thus they urged me to allow the application with costs. I have examined the depositions in the affidavits and the annextures thereto along with the written and oral submissions of the parties in a bid to determine whether the applicants have demonstrated sufficient cause within which to base in granting the orders sought for in the notice of motion. Beginning with the illegality, the point of contention between the parties is on the locus standi. As alluded to above, Mr. Njooka vehemently resisted the existence of any illegality. The starting point should be the record of the application which clearly provides that on 13th January, 2012, in Miscellaneous Civil Application No. 10 of 2008, the High Court (Masengi J. as she then was) granted leave for the applicants to appeal to the Court, canvasing, among others, the ground on locus standi as hereunder:

"For the reasons stated herein above, I fin d that there are grounds m eriting an appeal to the Court o f Appeal legally and factual as found in the applicants'grounds, that is:- (i) Whether locus standi can be presum ed contrary to the evidence on record. (ii) N/A. (iii) Whether it is sound in law and in fact fo r the court to hold that, the su it land belongs to the respondent while on the respondent assertion the land belongs to his father. (iv) N /A ." The foregoing excerpt to me is a revelation of the discontentment of the applicants regarding the legal point, that is, locus standi in the impugned decision. That is the position to date. I note further that, the High Court decision which granted leave to the applicants was preceded by the notice of appeal lodged by the applicants on 30th January, 2008. In the circumstances of the application beforehand, perhaps the question should not be the existence of the illegality, but rather, if that illegality is solely challengeable to the Court by way of revision. I am mindful to hold in the negative because; one, the applicants lodged notice of appeal to appeal to the Court intending to challenge the whole decision in Civil Appeal No. 9 of 2003. Two, since by then it was a legal requirement, the applicants moved the High Court for leave to appeal to the Court successful. Three, the High Court granted leave to the applicants to

appeal to the Court as prayed for. Four, one of the grounds the applicants intended the Court to determine is the locus standi. Five, as per the depositions in paragraph 5 of an affidavit in reply, the notice of appeal which was filed by the applicants on 30 January, 2008 was struck out by the Court on 23rd September, 2014 for being defective and six, that, another notice of appeal lodged after the striking out of the first notice of appeal was also struck out for failure by the applicant to take essential steps to appeal. This was on 6th December, 2017. It is therefore clear to me that, the question of locus standi as treated in the instant application is appealable and in fact the applicants commenced appeal processes by filing the notice of appeal and further applied for leave to appeal, which, as alluded to above, it was granted. They have failed to prosecute the appeal for reasons best known to themselves, and instead, they opted to open the revisional door. In Naima Suleiman (Suing as a next friend of Zakaria Omary Salum Shigela (Minor) v. Idu Busanya Mugeta (Administrator of the Late Lazaro Busanya and Five Others (Civil Application No. 538/08 of 2019) [2022] TZCA 827 (8 December 2022; TanzLII), the Court refused to extend time for revision on the ground that the applicant had other remedies open to him as hereunder:

"In the same veinf as rightly subm itted by the counsel fo r the 1st and 2nd respondents, the applicant has a right to assert her right over the su it prem ises by filin g objection proceedings. I t is com m on g ro u n d th a t w here th ere is a lre a d y an a lte rn a tiv e rem edy p ro vid e d b y law , tik e in the m a tte r a t hand, the a p p lica n t can n o t p ro p e rly m ove the C o u rt to use its re v isio n a l ju risd ic tio n . In view o f the above, I find that the applicant failed to advance any reason fo r the extension o f time, le t alone good cause fo r the Court to exercise its discretion. A cco rd in g lyth e application is dism issed with costs fo r lacking m e rit " [emphasis mine] See also Nsajigwa I. Mwasokwa v. New Habari (2006) Ltd & Others (Civil Application No. 836/01 of 2023) [2025] TZCA 576 (6 June 2025; TanzLII). In the instant application, the applicants processed the appeal, but as said, failed in the midway. The remedy therefore was to proceed with their appeal from the stage it reached. For that matter, time for revision may not therefore be enlarged as an alternative remedy to the applicants for the failure to proceed with their appeal. The other ground relied by the applicants for enlargement of time is the argument that the applicants' right to appeal to the Court has been 8

blocked by judicial processes. In the notice of motion, the applicants alleged as follows regarding this assertion: "J. High Court (Hon. F. H. MASSENGI, 1 ) at Arusha certified and granted leave to appeal to this Court fo r legal and factual grounds, however an appeal process to the Court o f Appeal was blocked and no any other way the High Court Records can be put proper except by way o f revision" In the supporting affidavit, the applicants deposed the following on this fact: "13. That, in Misc. C ivil Application No. 10/2008, the High Court (Hon. F. H. MASSENGI, J.) a t Arusha certified and granted leave to appeal to this Court on above legal and factual grounds, however, an appeal pro cesses on the C o u rt o f A p p e a l w ere b lo cke d a fte r the s trik in g o u t o f the a p p lic a n ts'n o tice o f ap p ea l a n d no o th e r w ay th e H igh C o u rt reco rd s can be p u t p ro p e r excep t b y w ay o f re v isio n [emphasis mine] What I actually note in the two foregoing extracts is that, the applicants' stance for assertion that their appeal processes have been blocked hinges on the move of the Court to strike out the notice of appeal.

This assertion, in my considered view, is unfounded. As I stated earlier on, the applicants' first notice of appeal was stripped of the Court because of the defects. The second one was again struck out for failure to take essential steps. In the latter, the Court in Awaki Shauri v. Norbert Christopher Gombay (Legal Representative of Christopher Gwandu) & Another (Civil Application No. 19 of 2016) [2017] TZCA 271 (6 December 2017; TanzLII) did struck out that notice of appeal because, among others, the applicants did not request the documents for appeal purposes as hereunder: "Unfortunate on the p art o f the respondents, there was no evidence disclosed from the affidavit file d in reply to the notice o f motion, to establish that they can benefit from the exception provided under the proviso to Rule 90 (1) o f the Rules in that, there was no application made to the High Court asking fo r such documents, and a copy served to the applicant. Under the circum stances, undoubtedly, there is m erit in the application by the applicant that, the respondents did fa il to take essential steps to prosecute the appeal." It is clear to me that no any judicial processes which prevented or blocked the applicants from appealing to the Court. The truth however according to the decision of that Court, which I just quoted above, is that, 10

the applicants blocked themselves to appeal by their failure to take essential steps in appealing to the Court. The action of the Court to strike out the notice of appeal after being moved by the respondent herein was within the parameters of the law, as such, may not, in return, be deployed by the applicants as a blocking machinery to their right of appeal, this ground again, is unfounded. In the circumstances, I am inclined to the argument fronted by Mr. Njooka that the applicants have indeed failed to show sufficient cause to bank on in the exercise of the discretion in enlargement of time for revision. The application thus fails, accordingly, I am constrained to dismiss it with costs. DATED at ARUSHA this 6th day of August, 2025. The Ruling delivered this 7th day of August, 2025 in the presence of the of 1st and 2n d Applicants in person and Mr. George Njooka, learned Counsel for the Respondent, is hereby certified as a true copy of the original. G. I MDEMU JUSTICE OF APPEAL R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL