Catherine Bura Ingi vs Lucila Kwaang Pareso (Civil Application No. 444/02 of 2024) [2024] TZCA 1148 (1 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 444/02 OF 2024 CATHERINE BURA INGI......................................... . ..... ! ......... APPLICANT VERSUS LUCILA KWAANG PARESO .................................................. RESPONDENT (Application for extension of time to file Appeal to the Court of Appeal of Tanzania against the Judgment and decree of the High Court of Tanzania at Manyara) fKahvoza 3Q dated the 6th day of July 2023 in Land Appeal No. 3 of 2023 RULING 1st November , 2024 MURUKE. J.A.: The respondent, Lucila Kwaang Pareso is applicant sister-in-law in that Lucila was married to Samweli Bura applicants' late brother who died intestate in 2017, leaving surviving him, the wife Lucila and several children. Unfortunately, before Lucila husband met his death, Anno Damo Lucila's mother-in-law passed away. She died intestate. Joseph Bura applied to administer the estate of the late Anno Damo her mother, and Lucila's mother-in-law. On the other hand, Lucila was appointed to be administratix of her late husband estate. Dispute arose over land left by Lucila husband in which Joseph Bura claimed to be of her mother,

the late Anno Damo in which Catherine Bura was given inheritance as part of her mother estate. After failure to resolve the dispute, Catherine Bura Ingi sued Lucila Kwaang Pareso the administratix of the late Samweli Bura's estate, for declaration that she was the rightful owner of the suit land at the District Land and Housing Tribunal (DHLT) in which she won the case. Lucila was dissatisfied, thus preferred an appeal to the High Court where after evaluation of evidence, ruled in her favour, on 6th July 2023. Applicant after being issued with necessary copies filed miscellaneous Land Application No. 56 of 2023, seeking for leave to appeal to the Court of Appeal of Tanzania. After several adjournment, on 20th March 2024, applicant application was withdrawn following the enactment of Legal Sector Law (Miscellaneous Amendment) act 2023, that came into effect in December 2023, in which leave to appeal to the Court of Appeal was no longer a requirement. Following withdraw as stated above applicant found herself out of time to file appeal before this Court, thus filing of this application for extension of time. Application is supported by applicant own affidavit explaining reason for delay at paragraph 3, 4, and 5, that delay was caused by change of the law in which she had no control of the' situation. Respondent did not file affidavit in reply. At the hearing of the

application, Mr. Fadhiii Nangawe learned counsel holding brief of Mr. Remmy Msaki represented the respondent, whereas the applicant was in person not represented. The applicant requested Court to adopt her affidavit in support of the Notice of Motion and grant the orders sought. At the outset, the respondent's counsel Mr. Nangawe informed the Court that he is not objecting to the application on the strength ,of applicant's affidavit. It is worth noting that, this is uncontested application for extension of time brought under Rule 10 of Tanzania Court of Appeal Rules, 2009. Under the above rule, the Court has been conferred with discretionary.powers to grant extension of time after the expiration of time set. In exercising its discretion to grant extension of time, the Court considers crucial factors, which are not necessarily exhaustive but at the moment they include, one, the cause of delay, two, length of delay, three, whether the applicant has accounted for delay and four, whether there is .illegality or any point of law of sufficient public importance in the, decision sought to be challenged. I have also considered the fact that the extension of time is an equitable remedy that is available to a deserving party at the discretion of the Court. It is therefore the duty of the applicant to provide relevant material facts for the Court to exercise its discretion.

This Court when interpreting the judicial discretion of the Court to extend time in the case of Samwel Sichome v. Bulehe Hamisi, Civil Application No. 8 of 2015 quoting from the case of Henry Muyaga v. TTCL, Civil Application No. 8 of 2011 (unreported) the Court held that: The discretion o f the Court to extend time under ruie 10 is unfettered, but it has been held that in considering an application under rule, the Court may take in the consideration such factors as the lengthy o f de/ay, reason for the delay, and the degree o f Prejudice that the respondent may suffer if the application is notgranted". t , More so, the Court has to be satisfied that the applicant has adduced sufficient cause. The term sufficient cause has nO fast and hard rule. It is a matter of discretion on the part of the Court, exercisable judiciously and flexibly ,by considering the relevant facts of the case. In the case of Phares Patson Matonya (As administrator of the Estate of the late Patson Matonya) v. The Registrar, Industrial Court of Tanzania and two-Others, Civil Reference No. .26 of 2019 [2023] TZCA 160 (29 March 2023, TANZLII) the Court held at page 7 that: - " Undoubtedly, it -has not been possible to fay down an invariable definition o f good cause to guide the exercise o f the Court's discretion.

Nevertheless, the Court has consistently looked at a myriad of. factors such as the length o f the delay, involved; reason for delay; the degree o f Prejudice, if any, that each party stands to suffer depending on how the Court exercises it's discretion; the conduct o f the parties; the need to balance the interests o f a party who has a decision in his or her favour against the interest of a party who has constitutionally underpinned right o f appeal; whether there is point o f law o f sufficient importance such as illegality o f the decision sought to be challenged". Looking at the affidavit in support of the application sworn by the applicant at paragraphs-4 and 5, the same disclose how the applicant's first application was bound to be withdrawn following change of the law in that, leave to appeal to the Court of Appeal was no longer a requirement. Thus, technical reason caused by legislative changes. As said earlier, the applicant first application was bound to be withdrawn on 20th March, 2024, and present application was filed on 28th March 2024. From 27th July when applicant filed miscellaneous Land Application No 56 of 2023 seeking for leave to appeal to the Court of Appeal, to 20th March 2024 when application withdrawn is a period of almost eight (8) months, that the applicant was waiting for his a pplication to be heard, a situation that the applicant had no control.

The change of the law for appeal purposes, is an administrative affair of the court, neither the applicant nor the respondent had control of the situation. That period of delay is what case law describes as an excusable technical delay- see: Dr. Fortunatus Lwanyantika Maisha vs Dr. William Shija and Another (Civil Appeal 43 of 1996) [1997] TZCA 51 (10 January 1997,TANZLII), Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd., Civil Reference No. 18 of 2006, Zahara Kitindi & Another vs Juma Swalehe & Others (Civil Application 4 of 2017) [2017] TZCA 196 (3 March 2017/TANZLII), Yara Tanzania Limited y. DB Shapriya and Co. Limited, Civil Application No. 498/16 of; 2016, Vodacom Foundation v. Commissioner General (TRA), Civil-Application No. 107/20 of 2017 (both unreported), Samwel Kobelo Muhulo vs National Housing Corporation (Civil Appeal No. 302 of 2017) [2018] TZCA 33 (26 July 2018,TANZLII) to mention but a few. In Salvand K. A. Rwegasira (supra), for instance, the full Court quoted the holding and subscribed to the position taken by a single Justice of the Court that: "A distinction .had , to be drawn between, cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to ,

be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement of the ruling o f the Court striking out the first appeal. In these circumstances an extension o f time ought to be granted." On receipt otthe necessary document and after finding herself out time, the applicant filed the present application on 28th , - March, 2024, just seven days after receipt of the necessary documentation. There is no doubt that the. applicant acted so promptly to file the present application. The test employed in determining promptness in my view is that of reasonableness. -That is;'whether the time taken by the applicant to file the application ; for extension of time was- reasonable. In my view; this is a question of fact which has to be decided on case -by case basis. Hus Court in the case of Saulo Malima v. Petro Kingoni, (Civil Appeal 154 of 2022) £2024] TZCA 436 (11-June 2024, TANZLII) took the view that, 21-days delay was reasonable-time for the applicant to file review. In the matter at hand, the applicant took seven days from when first application was withdrawn to the date of filling present application, thus, applicant-acted promptly in applying for extension of time to lodge the memorandum a'nd record of appeal, m e application for extension of

time is thus allowed. The applicant is to file the intended appeal within 60 days from today. No order as to costs. DATED at ARUSHA this 1s t day of November, 2024. Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 1s t day of November, 2024 in the presence of the applicant in person and in the presence of Mr. Fadhili T. Nangawe holding brief for Mr. Remmy Msaki, learned counsel for the respondent, is hereby certified as a true copy of the original.