Sophia Kazimili vs Dutu Madi (Consolidated Misc. Civil Applicatio No. 5691 & 7805 of 2026) [2026] TZHC 3118 (12 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SIMIYU SUB-REGISTRY AT SIMIYU CONSOLIDATED MISC. CIVIL APPLICATION NO. 5691 & 7805 OF 2026 (Arising from the decisions o fMaswa District Court at Maswa in Civil Revision No 3438/2025; and CM I Revision No 31672/2025before Hon. E S. Missana - SRM) SOPHIA KAZIMILI............................................................APPLICANT VERSUS DUTU MADI................................................................... RESPONDENT RULING 1stJune & 121 1 1 June, 2026 CHUMA, J: This ruling is a Consolidated Miscellaneous Civil Application emanating from the decisions of Maswa District Court rendered in Civil Revision No. 3438/2025 and Civil Revision No. 31672/2025, both relating to the execution of the judgment of Nyalikungu Primary Court. The material facts giving rise to this application are easy to narrate, albeit briefly, as follows. The parties herein were formerly husband and wife. In Matrimonial Cause No. 9 of 2023, Nyalikungu Primary Court dissolved the 1 | P a g e

marriage between the parties and ordered the division of the matrimonial assets jointly acquired during the subsistence of their marriage. In the course of execution of the said decree, a dispute arose concerning a farm measuring thirty (30) acres ("the disputed farm"). Consequently, the Maswa District Court called for and examined the record of the proceedings through Civil Revision No. 3438/2025. Upon such examination, the District Court held that the disputed farm did not form part of the assets and was not subject to division as per the decision of Nyalikungu Primary Court. Following that determination, the matter was remitted to Nyalikungu Primary Court for continuation of the execution proceedings. However, dissatisfied with the manner in which the subsequent execution proceedings were conducted, the respondent herein successfully instituted Civil Revision No. 31672/2025 before the Maswa District Court. In its decision, the District Court nullified the execution proceedings conducted by Nyalikungu Primary Court and directed that the execution process be undertaken properly and in accordance with the law. 2 | P a g e

Aggrieved by the decisions of Maswa District Court, the applicant separately lodged before this Court Miscellaneous Civil Application No. 5691/2026 and Miscellaneous Civil Application No. 7805/2026, both seeking extension of time within which to appeal against the aforesaid decisions. Upon the applicant's application and by order of this Court, the two applications were consolidated and heard together as one. When the matter was placed before me for hearing, the applicant was represented by Mr. Masige, whilst the respondent enjoyed the legal services of Mr. Masunga, both learned advocates. The application was argued orally as summarized hereunder; Kicking the ball rolling, Mr. Masige, the applicant's counsel, submitted that this application arose from Matrimonial Cause No. 9 of 2023, where the respondent in this suit sued the appellant claiming for divorce and division of matrimonial property. That upon hearing the primary court, among others, as can be seen at page six of its decision, held that the disputed farm is among the matrimonial properties. Troubled by that finding the respondent unsuccessfully appealed to the Maswa District Court through Civil Appeal No 10 /2023. 3 | P a g e

He went on by submitting that, following the execution notice requiring her to hand over the disputed farm as deponed under paragraphs 6, 7, and 8 of the applicants' affidavit, she made a follow-up and discovered that there had been two revision proceedings heard and decided by the district court bearing numbers 3438/2025 and No.31672/2025. He added that, on page 2 of the decision in the former revision, the district court observed that the primary court did not declare the disputed farm as matrimonial property. Submitting on the reasons for delay, Mr. Masige drew the court's attention to paragraphs 5 and 6 of the applicant's affidavit and argued that the applicant was not aware of the two revisions stated above, as she was not served with the notice of hearing. He also added that the said proceedings are tainted with illegality and irregularity apparent on the face of the records. In elaboration of his submission, the counsel for the applicant referred this court to the case of Mbeya Rukwa Autoparts and Transport Limited V Jestina George Mwakyoma, Civil Appeal No 45 of 2017[ TZCA 14] and stated that in the said case, the court emphasized the fundamental right of hearing and that a person should not be condemned unheard, both in property and personal matters. 4 | P a g e

Concerning the issue of illegality, Mr. Masige placed reliance on the case of Charles Richard Kombe V Kinondoni Municipal Council Civil Reference No 13 of 2009 [2023 TZCA 37 and submitted that the term "illegality" has been defined by the law as an act not authorized by the law. He added that the scope of the said definition has since been broadened by the apex court through the case of Omary Mbaraka Omary and another V Abdul Razak Omary Laizer (as administrator of the estate of the late Mbaraka Omary ) Civil Application No 577 of 2018 [2026 TZCA 108 at page 9 to include the right to be heard. He therefore argued that, in the present application, the applicant was denied the right to be heard, leading to deprivation of the property right. Additionally, Mr. Masige referred to the case of Mery Donald Mashiku V Mather Donald Mashiku (Administrator of the estate of the late Donald Samike Mashiku), Civil Appeal No 7/2024[ 2026 TZCA 365 and submitted that the court observed that where illegality is proven in an application for extension of time, then the court has to grant it. Regarding the respondent's assertion in his counter affidavit that the applicant failed to account for each day of delay, Mr. Masige reiterated that 5 | P a g e

the applicant was not informed of the existence of the revision herein above stated. He finally urged this court to grant the application with costs. Opposing the application, Mr. Masunga, counsel for the respondent, adopted the counter affidavit and submitted that, as deponed under paragraph two of the counter affidavit, the instant application is untenable because the matter has already been decided by the same court in its decision dated 8/6/2012. He challenged the applicant's depositions appearing in paragraphs 5 and 6 of her affidavit regarding the existence of illegality and irregularity. In particular, Mr. Masunga argued that the said depositions are full of lies because the matter in dispute did not originate from the court's decision, but rather it originated from an execution proceeding, and that what was exercised by the district court is the outcome of an execution proceeding, which the applicant was present as deponed under Paragraph 7 of the counter affidavit and exhibited through annexure D3. In support of his submission, Mr. Masunga relied on the case of Shija Mhekela Katina V Gasper Mbabala Sigala Misc Land Application No. 6 | P a g e

17 of 2018[2020 THC 187 and argued that the affidavit, which is tainted with lies, should be ignored. Mr. Masunga contended further that the applicant in her affidavit did not advance any reason whatsoever justifying the delay of the days between 4th March 2026, when she got an advocate that she was looking for, to 31s t March 2026, when the instant application was filed. Moreover, referring to the case of Wilbert Stanslaus V Amasha Idd and two others, Criminal Application No.51/01/2023 [2025 TZCA 1003 he submitted that the applicant's failure to account for each day of delay weakens her justifications in proving sufficient reason for delay as required by law. Countering the applicant's submission that the disputed farm was distributed to the parties in Case No. 9 of 2023, Mr. Masunga submitted that the judgment does not indicate the division of the disputed farm, and that the decision of the district court has nothing to do with the alleged division. Mr. Masunga responded to the applicant's submission that she was denied the right to be heard. He particularly submitted that the counsel for the applicant introduced the new fact because the same was not pleaded in the applicant's affidavit. He added that the said revision was initiated in the 7 | P a g e

district court by the trial magistrate, as a result, it was decided that the disputed farm does not form part of matrimonial property. He finally submitted that the applicant failed to advance a good reason for the extension of time and subsequently urged this court to dismiss this application without cost. In rejoinder, Mr. Masige submitted that the impugned decision subject to this application is the revision made by the Maswa District Court and not the trial court as submitted by the respondent. He contended further that, about the issue of failure to attach the petition of the intended appeal, what is considered in this application is sufficient reasons and not the likelihood of success of the intended appeal. To support his assertion, he cited the case of Adam Charles V Republic Criminal Appeal No 130 of 2003 [TZCA 2004 page 11. Concerning failure to account for the day of delay, he argued that the term good cause has been broadened to include illegality. He argued, therefore, that whenever there is illegality, the court can extend time even though the applicant failed to account for each day of delay. 8 | P a g e

Regarding the division of the disputed farm, Mr. Masige rejoined that the court in Civil Appeal No. 10/2023 decided that the same forms part of matrimonial property; therefore, the district court was functus officio to open revision with respect to the same case. On the alleged lies in the applicant's affidavit, he submitted that the same cannot make the whole application nullity but if the court finds merit, the remedy is to expunge the offending paragraphs. In conclusion, he reiterated his prayers. Having carefully considered the rival submissions of the learned counsel, the authorities cited, and the records before the court, the pertinent issue merit consideration by this court is whether the applicant advanced sufficient reasons to warrant extension of time. Submitting in support of her application, the applicant grounded her application on two reasons, namely, illegality apparent on the face of the records, and the fact that she was not aware of the said decisions. On his part, the respondent objected to the application based on four reasons, namely, the matter is res judicata; that the applicant's affidavit is full of lies; that the applicant's application is not attached to the intended appeal; and that the applicant failed to account for each day of delay. 9 | P a g e

Given that the Respondent has challenged the competence of this application for failure to comply with the procedural requirement of attaching the intended appeal, I find it apposite to deliberate on that concern first. Arguing on this concern, the respondent merely submitted that the application is incompetent because it was not attached to the intended appeal. On his part, the applicant argued that what is considered in this application is sufficient reasons and not the likelihood of success of the intended appeal and that the petition has been brought under Section 14 of Law of Limitations Act [Cap 89 R.E 2023] which the purported attachment of the copy of the petition is not the requirement. The records reveal that the instant application has neither been accompanied by the petition of appeal nor disclosed the grounds upon which the decision or order is objected to. The Magistrates Act [Cap 11 R.E 2023] ("the Act") under Section 22(1) confers upon a District Court powers to revise proceedings and decisions of Primary Courts. In turn, Section 25(1)(b) of the same Act grants an aggrieved party the right to appeal against the decision of the District Court made in the exercise of such revisionary powers. In its proviso, 10 | P a g e

the provision further requires the appeal to be lodged within thirty days from the date of the decision and expressly empowers the High Court to extend the prescribed period where sufficient cause is shown. It is noteworthy, however, that while the Act recognizes the right of appeal and confers jurisdiction upon the High Court to extend time, it does not prescribe the procedure to be followed either in instituting such an appeal or in seeking an extension of time within which to do so. It is for this reason that the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, Government Notice No. 312 of 1964 , were enacted and promulgated. The Rules provide for procedures through which appeals arising from proceedings originating in Primary Courts are to be filed, including applications for leave to appeal out of time. Of particular relevance to the instant application is Rule 3 of the Rules , which, for clarity and ease of reference, is reproduced as hereunder; "3- An application for leave to appeal out o f time to a district court from a decision or order o fa primary court or to the High Court from a decision or order o f a district court in the exercise o f its appellate or revisional jurisdiction shall be in 11 | P a g e

writing, shall set out the reasons why a petition o f appeal was not or cannot be filed within thirty days after the date o f the decision or order against which it is desired to appeal, and shall be accompan i ed by the petition of appeal or shall set out the g r ounds of objection to the decision or order: Provided that where the application is to a district court, the court maypermit the applicant to state his reasons orally and shall record the same." A close reading of the above-quoted provision reveals that the requirement of attaching the petition of appeal or setting out the grounds of objection to the decision or order is couched in mandatory terms. From the above observation, the applicants' assertions that the preferred section 14 of The Law of Limitation Act does not require attachment of the petition of appeal, though attractive, is misconceived on the reason that the Law of Limitation Act is the law of general application for limitation of actions, therefore it cannot be used to circumvent or replace the above cited specific law applicable in the circumstances. See Hamisi Mwinyijuma & Another vs Honora Tanzania Public Limited Company (Civil Appeal No. 42 of 2023) [2025] TZCA 822 at pages 9 10. 12 | P a g e

In the final analysis, I find the instant application incompetent for failure to attach the intended petition of appeal or setting out the grounds of objections to the decision or order. Accordingly, this application is hereby struck out with no order as to costs. Order accordingly Right of appeal explained. Court: Ruling delivered in court virtually in attendance of Mr Masige advocate for the applicant and the parties this 12th day of June 2026. DATED at SIMIYU this 12th day of June 2026 13 | P a g e