Felisia Valerian Masao vs Teodomir Marselian Masao (Civil Review No. 000012942 of 2025) [2026] TZHC 3010 (8 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CIVIL REVIEW NO. 000012942 OF 2025 FELISIA VALERIAN MASAO .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS TEODOMIR MARSELIAN MASAO .............................. RESPONDENT / DEFENDANT RULING KILIMI, J The applicants have moved this court by way of chamber summons under section 78(1), Order XLII Rule 1(1) and 4(2), and Order XLIII Rule 2 of the Civil Procedure Code Cap. 33 of the Revised Laws ‘CPC’, seeking review of the decision of this court dated 16 May 2025 in Civil Application No. 23354 of 2024 which granted the respondent extension th of time to file notice of appeal to the Court of Appeal. The application is supported by the affidavit duly sworn by Mr. Philip Njau learned counsel for the applicants and the following are the prayers presented in this court;

1. That this Court make a finding that the sworn affidavit in support of Civil Application No.23354 of 2024 which was filed in this court on behalf of the applicant Teodomir Marcelian Masao to obtain an order for extension of time contained untrue and misleading information.

2. That the order issued by this Court in Civil Application No. 23354 of 2024 on 16/05/2025 for extension of time to file notice of appeal was obtained fraudulently. Page. 1

3. That this court departs from its decision and order which was delivered on 16/05/2025 in Miscellaneous Application No. 23354 of 2024.

4. That this court issue an order that the miscellaneous application No. 23345 of 2024 is devoid of merits and dismiss the same with costs and any other reliefs as this court may find fit and proper to grant. The brief facts of the parties’ clash as discerned from the parties’ affidavit are simple and straight forward. Applicants’ affidavit reveals that the respondent herein successfully sued the applicants before the District Land and Housing Tribunal for Moshi ‘DLHT’ in Land Application No. 139 of 2021. Dissatisfied with that decision, the applicants preferred an appeal to this Court being Land Appeal No. 11 of 2023. In the meantime, the respondent being the decree holder before the tribunal, instituted execution proceedings at the DLHT, Execution Application No. 108 of 2023 together with a Bill of Costs Application No. 109 of

5. It is further revealed that on 6 November 2023, counsel for the applicants informed th the Tribunal that Land Appeal No. 11 of 2023 had already been determined by this Court in favour of the applicants. Approximately ten months later, on 19 September 2024 through th another advocate, the respondent approached this Court by filing Civil Application No. 23354 of 2024 seeking an extension of time within which to file a Notice of Appeal to the Court of Appeal against the decision of this Court in Land Appeal No. 11 of 2023. The application was granted. The reasons advanced under paragraphs 4 and 5 of the supporting affidavit was that the respondent had been ill from 2023 up to August 2024 and was therefore unable to file the Notice of Appeal within the prescribed time. Following the grant of the extension of time, the applicants through their advocate requested from the District Land and Housing Tribunal copies of the proceedings in Execution Application No. 108 of 2023 and Bill of Costs Application No. 109 of 2023. Upon obtaining and perusing those proceedings on 30 May 2025, the applicants discovered that th during the hearing of the execution application on 6 November 2023, counsel for the th respondent acknowledged the existence of this Court's decision in Land Appeal No. 11 of 2023 and informed the Tribunal that a Notice of Appeal to the Court of Appeal against that decision had already been filed. Counsel subsequently withdrew the execution application with leave to re-file, which leave was granted by the Tribunal. The applicants therefore contends that the explanation of illness advanced by the respondent in Civil Application No. Page. 2

23354 of 2024 before this court was untrue and misleading as the proceedings before the District Land and Housing Tribunal portrayed a completely different picture. In opposing the application, the respondent filed a counter affidavit in which he averred that the applicants' allegations were matters for strict proof. He further stated that this Court granted him an extension of time in Civil Application No. 23354 of 2024 to lodge a notice of appeal to the Court of Appeal which notice was filed on 21 May 2025 and served st upon the applicants on 23 May 2025. The respondent reiterated the contents of rd paragraphs 4 and 5 of the affidavit he had sworn in support of Civil Application No. 23354 of 2024 and maintained that the illness referred to therein was genuine and true to the best of his knowledge. At the hearing of the application which with the leave of the court proceeded by way of written submissions, the applicants were represented by Mr. Philip Njau learned Advocate, while the respondent enjoyed the service of Mr. Alfred Sindato also learned Advocate. I applaud both counsels for their timely and comprehensive submissions in support of and in opposition to the application, however I will refer to them in due course of my determination of their dispute. Thus, having carefully considered the submissions and the record available, I now proceed to determine whether the application before this Court is meritorious. The core argument advanced by Mr. Njau is that the order granting extension of time by this court was obtained through misrepresentation and concealment of material facts. According to the applicants, the respondent misled this Court by claiming that he was sick therefore unable to file a notice of appeal in time, whereas the proceedings of the District Land and Housing Tribunal indicated that he had already informed the Tribunal that he had filed a notice to the Court of Appeal against the decision of this Court in Land Appeal No. 11 of 2023. Therefore, under the circumstances the said decision is subject to review, he supported his assertion by referring the cases of Karim Kiara vs Republic (Criminal application no 4 of 2007) (2009] TZCA 233 (23 October 2009) (TanzLII) and Yusuf Seleman Kimario vs Administrator General and Other Civil appeal no. 266 of 2020 [2022} TZCA 306 (24 May 2022) (TanzLII). Before I delve into the merit of the above claim. I find apt to be guided by the law which empowers this court to make review of its own decision, this is order XLII Rule 1 of the CPC and I will reproduce its contents hereunder: Page. 3

“Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.” In line of the above provision, in order for this court to entertain a review, first, there should be a decree or order in which no appeal is allowed, or appeal is allowed but not preferred; second, where there is a discovery of new evidence which could not be produced when the order was made or upon discovery of an apparent errors on face of record. And third is when there are sufficient reasons to do so. In lieu of the above position of the law, the point to be considered is whether there are sufficient grounds established to warrant review of the said decision. I have considered the record at the tribunal as averred by the applicants in their affidavit and the applicant’s counsel submissions. In the outset the applicant is seeking to review the decision of this court and not that of the tribunal, therefore what revealed at the tribunal cannot automatically affect the decision of this court if there are too remote or not connected to the facts this court used to make its decision. According to the decision of this court delivered on 16 May, 2025 when granting extension of time at page 15 this court had this to say; th “I have keenly scanned annexture TD2, although the same did not reflect that all the time the applicant was in Hospital but the medical report revealed that due to his critical health condition, it was suggested neither he perform hard work nor travel long distances. In my view common sense here does suggest that the applicant was unhealthy, therefore he cannot be condemned that he faulted maliciously to instruct his advocate to process for his Page. 4

appeal. In that regard and having considered the above circumstances, I am settled to find that this ground of sickness suffices to be a sufficient reason for extending time to file the notice of appeal.” From the excerpt above, this court relied on the evidence presented before it in order to allow the prayer for extension of time upon satisfying itself by evidence that the respondent was sick. Thus, this was a decision deliberately reached with reasons which convinced this court to invoke its discretion. If I may add, it was the opinion of this court after considering the evidence adduced. In the circumstance, the same cannot be challenged by way of review, because by doing so, will amount to this court to sit in its own appeal. (see Gabriel Kung'u Kariuki & Another vs Republic (Criminal Application No.56/01 of 2020) [2023] TZCA 17459 (25 July 2023) and Shadrack Balinago vs Fikir Mohamed @ Hamza & Others (Civil Application No. 25 of 2019) [2021] TZCA 45 (25 February 2021). In Shadrack Balinago (supra), the court observed that a review is not a substitute for appeal, an application for review cannot be used to re-argue facts, evidence or law that properly form the basis of an appeal; review is limited to correcting obvious or patent errors on the face of the record. Guided by the above authorities, it is my considered opinion that, review is not available as an automatic remedy to an aggrieved party. In this matter at hand therefore, I am not ready to buy the contention by Mr. Njau that respondent did misrepresentation and concealment of material facts that he was sick hence unable to file a notice of appeal in time. This is because entertaining the same at this stage under the realm of this court review will amount to re- argue facts and evidence which is prohibited by the authorities above. Nevertheless, I have considered the circumstances at the tribunal and the argument by the applicants’ counsel, in my considered view the same ought to have discovered by the applicants during the hearing of the application for extension of time in this court, therefore presenting in this matter cannot meet the threshold of discovery of new facts as per Order XLII Rule 1 (1) of the CPC. In the premises, I am constrained to agree with Mr. Sindato that applicants have failed to establish any legal or factual basis for the orders sought to be granted. Consequently, the authorities relied upon by the applicants are distinguishable from the circumstances of the present case and are therefore inapplicable. In the end result, I find that the application Page. 5

before this court is devoid of merit and the same is hereby dismissed. Given the fact that the dispute stemmed from family squabbles, I make no orders as to costs. It is so ordered. Dated at MOSHI this 8th of June 2026 . A. P KILIMI JUDGE OF THE HIGH COURT Page. 6