Rashidi Rashidi Mwenyevyale vs Mapololoni Guest House (Civil Application No. 421/18 of 2023) [2024] TZCA 909 (19 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 421/18 OF 2023 RASHIDI RASHIDI M W ENYEVYALE ................................................. APPLICANT VERSUS MAPOLOLONI GUEST HOUSE .................................................... RESPONDENT (Application for extension of time to lodge a notice of appeal) (Mqanqa, J . ) dated the 1st day of July, 2022 in Misc. Labour Application No. 101 of 2022 RULING 8th May & 19th September, 2024 MAIGE, J.A. The applicant lost an action before the Commission for Mediation and Arbitration for unfairness of termination of his service. He was aggrieved but for the reasons which may not be necessary in this decision, could not pursue the intended revision. He applied for an extension of time so to do but his application was dismissed by the High Court. Aggrieved, he lodged a notice of appeal. Having realized that he is already time barred, the applicant has applied, under rule 10 of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), for an extension of time to institute the intended appeal. The factual justification for the application are contained in his affidavit which has been opposed by an affidavit in reply deposed on the respondent's behalf by advocate Mutakyamirwa Philemon. l

The hearing of the application was made on 8th May, 2024 in the presence of the applicant in person and Mr. Mtakyamirwa Philemon, learned advocate, for the respondent. When invited to address me on the merit or otherwise of the application, the applicant fuliy adopted the notice of motion and affidavit and urged me to grant the application. In response, Mr. Mtakyamirwa also adopted the affidavit in reply with some clarifications. I have duly considered the rival submissions in line with the relevant affidavits. The issue which I have to resolve is whether good cause for an extension of time has been established as the law requires. Under rule 90(1) of the Rules, the intended appeal has to be instituted within 60 days from the date of lodging of the notice of appeal. However, where the intended appellant requested for a copy of the proceedings within time, the period within which he was awaiting for a copy of the proceedings would be excluded by way of a certificate of delay issued by the Registrar. In this matter, the notice of appeal was lodged on 5th July, 2022. If everything remained constant, therefore, the intended appeal should have been instituted before 5th of September, 2022. The instant application was lodged on 30th May, 2023. It is after the expiry of more than one year. The applicant claims that, he requested for a copy of the proceedings on 5th July, 2022 and in reaction, he was supplied with only a copy of the ruling 2

on 19th January 2023 which compelled him to further apply for the remaining documents on 20th February, 2023. In his submission, Mr. Mtakyarwa contends that, the alleged letter cannot be used to exclude time under rule 90(1) of the Rules because, it only requested for a copy of the ruling. There was no comment from the applicant on that issue. The respective letter has been attached in the affidavit and marked annexure R2. What is requested therein is, as correctly submitted for the respondent, a copy of the ruling only which was, as admitted by the applicant, made available to him on 19th January, 2023. In view of the going discussions, therefore, I agree with Mr. Mtakyarwa that, as the said letter only requested for a copy of the ruling, it cannot, under rule 90(1) of the Rules, be used to exclude time for the purpose of appeal. The applicant was, therefore, bound, which he did not, to justify the period between lodging of the notice of appeal and filing the instant application. The affidavit indicates that the applicant was supplied with a certificate of delay in annexure R5 excluding time from 4th July, 2023 to 18th day of January, 2023 and, on the same day, he applied in effect for amendment of the certificate of delay so that time could be excluded for a further period of two weeks. It is worth of note that, while acknowledging to have been supplied with the respective certificate of delay on 18th 3

January, 2023, it was not until 13th March, 2023 that, the applicant wrote the letter in annexure R6 requesting for the period in the certificate of delay be extended. Therefore, assuming, which is not that, the period between the lodging of the notice of appeal and notification to collect a copy of the ruling was to be excluded, yet the period between 18th January, 2023 to 13th March, 2023 would remained unaccounted for. This is a period of more than 45 days while the law requires for everyday of the delay to be accounted for. In the final result and for the foregoing reasons, the application is devoid of any merit and it is hereby dismissed. This being a labour matter, I make no order as to costs. DATED at DAR ES SALAAM this 18th day of September, 2024. I. J. MAIGE JUSTICE OF APPEAL The Ruling delivered this 19th day of September, 2024 in the presence of the Appellant in person and Ms. Jeddnes Jasson, learned counsel for the Respondent, is hereby certified as a true copy of the origir^1 4