Rashidi Salumu Futo (Administrator of Estate of Late Salimu Ramadhani Futo) vs Kereto Yakaye Ngang'wayi (Civil Reference No. 31768 of 2025) [2026] TZHC 2983 (3 June 2026)
Judgment
1 | P a g e THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CIVIL REFERENCE NO. 31768 OF 2025 (Arising from Taxation Cause No. 000018029 of 2025 in the High Court of Tanzania Dodoma sub-registry at Dodoma) BETWEEN RASHIDI SALUMU FUTO (Administrator of Estate of the Late Salimu Ramadhani Futo) …………….…………..APPLICANT VERSUS KERETO YAKAYE NGANG’WAYI …………………... RESPONDENT RULING Date of last order: 30/04/2026 Date of Ruling: 03/06/2026 LONGOPA, J.: On 15 December 2025, the applicant filed a civil reference challenging the decision of taxing officer in form of ruling in the Taxation Cause No.000018029/2025 which ended in favor of the Respondent where the Honorable Taxing Master ruled out for the Applicant to pay the sum of
2 | P a g e Tshs 1,480,000/=. In course of responding to the civil reference, on 14 March 2026, the respondent raised preliminary objections on two main points of law, namely that:
- That this application is time-barred.
- The Applicant contravened order 7 (3) of the Advocates Remuneration Order, 2015 It was the respondent ’s prayer before this Honourable Court to dismiss this application with costs owing to it being violative of fundamental provisions that go to root of the matter. On 30 April 2026, the court by consent of parties agreed to dispose the preliminary objection by way of written submissions. The written submissions were filed. The applicant was represented by Mr. Godfrey Wasonga, learned advocate while the respondent enjoyed the legal services of Mr. Pastor Kong’oke, learned advocate. The learned counsel for respondent kickstarted the submission on both points of preliminary objection. With regard to the first point of
3 | P a g e preliminary objection, it was stated that Order 7(1) of the Advocates Remuneration Order, 2015 entitles a party to Taxation Cause to challenge the decision of the Taxing officer by way of reference to a High Court Judge and by virtue of Order 7(2) of the Advocates Remuneration Order such filing of civil reference should done within twenty-one (21) days of the date of the decision. According to respondent’s counsel t he ruling subject of this application was delivered on 19th November 2025 and according to the Judiciary of Tanzania electronic filing system this application was filed on 15th day of December 2025 by simple arithmetic of counting days from 19th day of November 2025 to 15th day of December 2025 makes a total of 27 days it goes without saying that this application was filed 6 days beyond the time limit fastened by the law. It was added that Order 7(2) of the Advocates Remuneration Order 2025 is very clear on time limitation to file the application within 21 days from the date of the decision and not from any other date but from the
4 | P a g e date of the decision. It goes without saying that this application is time barred and we pray that the same be dismissed with costs. The court was invited to consider the decision in the case of Ahmed A. Mwinge and Four Others vs. Haroun Khatibu Pande [2024] TZHC 2107 where the Court held that filing an application beyond time prescribed time amounts to the application being hopelessly out of time unless the court extends time vide Order 8(1) of the Advocates Remuneration Order, 2015 prior to institution of such application/reference upon existence of sufficient cause. In the circumstances where reference is filed out of time, Section 3(1) of Law of Limitation Act (Cap 89 R. E 2019) comes into play and such application for reference deserves dismissal as stated in the case of Steven Masatu Wasira Vs. Joseph Sinde Warioba & The Attorney General (1999) TLR 334. With regard to the second objection on the application contravening Order 7 (3) of the Advocates Remuneration Order, 2015, it was submitted
5 | P a g e by the respondent’s counsel that the law requires that service of the application be effected within seven clear days of filing reference. The respondent added that the judiciary of Tanzania electronic filing system shows that the applicant filed the application on 15 December 2025. However, the Applicant served the Respondent herein on 14 th day of January 2026 which is 29 days from the date of filing a reference. The service of the reference being done on that date was beyond time prescribed by the law. It goes without saying that the Application was served to the respondent 22 days beyond the time limit provided by the law. It was reiterated by the learned counsel for the respondent that however, the respondent having crosschecked with the judiciary of Tanzania electronic filing system there are no such proof of service whatsoever from the applicant. Accordingly, the effect of failing to serve the respondent within time makes the Application incompetent and the same has to be struck out of
6 | P a g e the court, this was held in the case of BRIDGEWAYS LOGISTIC versus TRIPPLE "A" HAULIERS [2022] TZCA 285 where the court service of the record of appeal beyond time was unfortunate as there was no extension of time thus the appeal deserved to be struck out /dismissed for being time-barred. At this juncture, the learned advocate for the respondent argued that considering the two objections as categorically demonstrated in the submission, the respondent prayed that this Honourable Court to dismiss this application with costs. Conversely, the counsel for the Counsel for the applicant concurred that it was correct the application before this Court was signed on 11 December 2025 and filed in the Electronic Court Management System (Ecms) on 15 December 2025. It was argued that with regard to time of filing being expired that was incorrect as the applicant herein received the ruling on 27/11/2025 which was some days after the ruling and drawn order was delivered. To
7 | P a g e substantiate those dates, the learned advocate attached annotated ruling indicating that the same was received on 11 December 2025. According to the learned Counsel for the applicant, on strength on Section 19(2) of the Law of Limitation Act, Cap 89 R.E. 2023 all periods spent in following up and collection of the ruling and drawn order are automatically excluded thus counting should be reckoned from the date of the collection of the ruling and drawn order which according to submission is 27 November 2025 and not from 19 November 2025 when such decision was delivered. At this juncture, it was the applicant’s counsel version of submission that filing the application on 15 December 2025 was well within time as the same was preferred within 19 days which could not in no way mathematically be considered to be beyond time. On the second point of preliminary objection, it was submitted that it was a new ground. However, the applicant’s counsel was quick to state that the respondent was served timeously within seven (7) days. It was
8 | P a g e added that this ground would require an affidavit of service to evidence the proof of service which in law does not qualify to form a preliminary objection. At this juncture, the learned advocate wished and did rest the case. In rejoinder, the learned counsel for the respondent reiterated that Section 19(2) of the Law of Limitation Act, Cap 89 R.E. 2023 was inapplicable to this matter as it does not apply to reference to High Court as explicitly excluded in that very provision of the law. Also, it was added that application for review does not need attachment of any of those documents. Having heard the submissions of the parties, this court is enjoined to determine validity of the preliminary objections raised. The court is guided by pleadings, applicable legal principles as well as written submission in light of preferred grounds of the preliminary objection. It is settled law that for preliminary objection to be worth a name it must be on pure point of law. It should not need evidence to be
9 | P a g e ascertained. In the case of Alliance Insurance Corporation Ltd vs Arusha Art Ltd (Civil Appeal No. 297 of 2017) [2018] TZCA 294 (14 December 2018) (TANZLII), at page 4, the Court reiterated that: From the submissions of the learned counsel for the parties, the issue for our determination in ground (a) of the preliminary objection is whether or not that ground raises a pure point of law. We agree with Dr. Nguluma that the same does not. In the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 699 which has often been cited as an authority on the proper way of raising a preliminary objection, Sir Charles Newbold, P. stated as follows: “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion . . . “[Emphasis added]. In Etiennes Hotel vs National Housing Corporation (Civil Reference No. 32 of 2005) [2006] TZCA 342 (1 June 2006) (TANZLII), at pages 3-4, the Court reiterated the criteria that:
10 | P a g e However, that has caused us to ask ourselves whether the grounds are really the kind which could be raised in a preliminary objection if to counter them evidence has to be adduced. This Court dealt with this matter in Shahida Abdul Hassanali Kassam v. Mahedi Mohammed Gulamali Kanji , Civil Application No. 42 of 1999. We cited with approval Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] E. A. 696 where LAW, J. A. said at p. 700: So far as I am aware, preliminary objection consists of a point of law which has been pleaded, or which arise by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. Then at p. 701 SIR CHARLES NEWBOLD, P. added: A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
11 | P a g e In instant application both points of objection raised fall within the ambits of preliminary objection as they relate to time which is one of the essential ingredients of dispensation of justice in this jurisdiction. In Vicent Masanda Wambura vs Philipo Ndunguru & Others (Civil Application No. 511/17 of 2020) [2024] TZCA 252 (2 April 2024) (TANZLII), at page 7, the Court held that: I wish to stress that, fundamental as it is, the granting of extension of time for the doing of act, cannot be taken for granted or casually. Since, without a strict adherence to rule 10 of the Rules, the possibilities of the courts to entertain time-barred matters would not be ruled out. It is common knowledge that, to entertain time-barred matters is tantamount to bless a breeding ground for endless litigation. Much as time bar touches on the jurisdiction of the Court. See- our decision in Said Mohamed Said v. Muhsin Amiri And Another , Civil Appeal No, 110 of 2020 (unreported). The second point of objection relates to failure to effect service of the application for reference within time. Though, it is true that time prescribed for Service of the Civil Reference is within seven days as per
12 | P a g e Order 7(3) of the Advocates Remuneration Order, 2015, the records in this cas points to a different direction against the objection. To better underscore this point, the proceedings of this Court are lucidly evidence that the service was done timely. Date: Wed Mar 11 2026 Coram: HON E.E. LONGOPA, J APPLICANT: ABSENT FOR APPLICANT: GODFREY WASONGA, ADVOCATE RESPONDENT: ABSENT FOR RESPONDENT: ABSENT JLA: J MGANGA RMA: NAIMA ABDALLAH GODFREY WASONGA, ADVOCATE: The matter is scheduled for mention. We pray summons to issue for serving the Respondent. That is all. SGD EELONGOPA JUDGE 11/03/2026 ORDER:
13 | P a g e
- Prayer to re-issue Summons for appearance of the Respondent is grant. Summons to issue.
- Mention on 30/04/ 2026 at 09:00 hours
- Parties to appear. SGD EELONGOPA JUDGE 11/03/ 2026 Having ordered the reservice of the respondent on 11 March 2026 and the respondent having filed the counter affidavit on 14 March 2026 as per electronic case management system (ecms) is a clear that the Court had extended time for the applicant to effect service well within ambits of Order 8(1) of the Advocates Remuneration Order, 2015. Courts are guided by the principle of sanctity of the Court records which requires that records of the court to be considered as authentic to represent what actually happened in respect of the matter in court of law.
14 | P a g e In Hellena Adam Elisha @ Hellen Silas Masui vs Yahaya Shabani & Another (Civil Application No. 118 of 2019) [2021] TZCA 669 (11 November 2021) (TANZLII), at pages 10-11, the Court held that: In resolving this preliminary objection, we have been guided by the principle of law that court records are deemed authentic and cannot be easily impeached. In the case of Halfani Sudi v. Abieza Chichili [1998] TLR 527, it was held that: "(i) A court record is a serious document. It should not be lightly impeached. (ii) There is always a presumption that a court record accurately represents what happened." The other cases on this point are Paulo Osinya v. R [1959] EA 353 and Shabir F. A. Jessa v. Rajkumar Deogra , Civil Reference No. 12 of 1994 (unreported) As the court record reveals that time to serve the respondent was extended and upon such extension the respondent was presumably served as within three days of extension, the respondent filed the counter affidavit. The question of lateness in respect of service of the application to the respondent does not arise at this juncture. The provision of Order 7(3) of
15 | P a g e the Advocates Remuneration Order when interpreted by the existing court record cumulatively leads to the conclusion that second limb of the preliminary objection is devoid of merits thus should be overruled for its destitute nature. On the first ground of preliminary objection on failure to file the application within time, this needs a more detailed and carefully analysis. To put the matters into perspective, it is on record that: One , the decision of the Taxing officer was made on 19 November 2025 as both the Ruling and Certificate of Taxation bear the signature and dated on 19 November 2025. Two , the application for reference to this court was filed on 15 December 2025. Three , counsel for applicant herein attached to the application a letter requesting for the proceedings, ruling and drawn dated 19 November 2025 which was not served to the respondent herein. Four, there is annotation in the ruling that appear to have been signed on 11 December 2025 by the counsel for applicant herein. Five , the applicant’s counsel own submission is that he secured the proceedings, ruling and drawn order on 27 November 2025. Six , the court order on written submission was to the
16 | P a g e effect that the reply submission should be filed by 22 May 2026. Seven, the reply submission was filed on 21 May 2026 but court fees were paid on 1 June 2026 thus the written submission reflected on the ecms on 1 June 2026. That is the totality of the facts on record that would assist this court to determine the first ground of the preliminary objection. It is settled law that exclusion of time spent to obtain the records namely ruling and certificate of taxation would ordinarily be applied to rescue the applicant’s version of story. This would be in line with the decision in Valerie McGivern vs Salim Farkrudin Balal (Civil Appeal No. 386 of 2019) [2021] TZCA 235 (7 June 2021) (TANZLII), at pages 11-12, the Court held that: In the case of Registered Trustees of the Marian Faith Healing Center @ Wanamaombi (supra) , it was held: "... the period between 2/5/2003 and 15/12/2003 when the appellants eventually obtained a copy of the decree ought to have been excluded in computing time." Suffice to say, section 19(2) of LLA and the holding in the decision cited above reinforce the principle that computation of the period of limitation prescribed for an
17 | P a g e appeal, is reckoned from the day on which the impugned judgment is pronounced the appellant obtains a copy of the decree or order appealed by excluding the time spent in obtaining such decree or order. However, it must be understood that section 19(2) of LLA can only apply if the intended appellant made a written request for the supply of the requisite copies for the purpose of an appeal…Guided by the case of the Registered Trustees of the Marian Faith Healing Center @ Wanamaombi (supra), in law an appellant had no obligation to frequently follow up on the necessary documents for appeal although it is practical and the realistic thing to do. It was held: "That the Registry concerned ought to have acted reasonable and diligently well without necessarily being reminded over and over against that the appellants were availed with copies of the documents. In Catherine Henry Malila vs Capital Radio & Others (Civil Reference No. 8802 of 2024) [2024] TZHC 8784 (18 October 2024) (TANZLII), at page 8, the High Court (Hon. Mbagwa, J.) held succinctly that:
18 | P a g e To put it in a crude way, in every subsequent proceeding whose institution requires an attachment of a court decree, order, judgment, or ruling, the automatic exclusion rule provided under section 19 of the LLA applies. In addition, it is worth noting that what is considered not the date on which the relevant document was supplied to the party but rather the date on which the documents were ready for collection and the efforts employed by the party in obtaining such documents. See the case of Juma Hasan Luvasile (Administrator of the estate of the late Hasan Said Luvasile) vs Mashangilio Chusi Helios Towers Tanzania and 2 Others , Land Appeal Case No. 21 of 2022, HC at Iringa. According to the record, it has been sufficiently exhibited that the decree in Civil Appeal No. 342 of 2021 was ready for collection on 14th February 2023 and that is the very date on which the applicant went to collect it. See also Alex Senkoro & Others vs Eliambuya Lyimo (Civil Appeal 16 of 2017) [2021] TZCA 104 (13 April 2021) (TANZLII), at page 11. The guidance on these precedents are that: One , there must be written application for obtaining the records in terms of either proceedings,
19 | P a g e judgment, ruling, decree or drawn order as the case may be. Two , the date of collection is not the most important but the date when such documents were ready of collection. This court has critically evaluated on the date when the records were ready for collection in the instant application. There is none indicated as the submissions made by the counsel for applicant have set the date to be 27 November 2025. However, there is nothing to support that averment. There is communication from the Court Registry to indicate that the documents were ready for collection on that date, or prior to that date or after that date. The attached ruling which the applicant sought this court to use as a yardstick speaks a different language altogether. The annotation by pen which the applicant wished this court to believe the date of availability of the documents for collection reveals notation was made on 11/12/2025 by the counsel of the applicant or in the office of the counsel. As there is nothing on that document purporting to support the averment that
20 | P a g e documents were made available on 27 November 2025, the only reference that this court can make is the date of the Ruling and Certificate of Taxation which are explicitly dated 19 November 2025. It is in the settled mind of this court that time should be reckoned from this date not otherwise. The applicant ought to have be clear record in form of communication from the registry or a dispatch book indicating the date when the documents were ready for collection. Based on this limb, the court is prepared to find out that indeed, counting from 19 November 2025 to 15 December 2025, the period exceeds the 21 days that the law has categorically allocated for the preferring a reference against the taxation of bill of costs decision. Furthermore, there is a serious aspect that eventhough the arguments of applicant in the above limb would be correct, the arguments by the applicant would have collapsed naturally for failure to adhere to court orders on filing of the submission to oppose the preliminary objection.
21 | P a g e The court order dated 30 April 2026 reveals that: Order: 1. The preliminary objection shall be disposed of by way of written submissions as prayed by the parties. 2. The submission order shall be as follows: (a) submission in chief on or by 14th May 2026; the Reply Submission by 22/05/2026; and Rejoinder, if any, by 27/05/2026. 3. Ruling on 03/ 06/2026 at 09:00 am 4. Parties to appear. In the ecms, it is revealed that the reply submission was filed on 21 May 2026. However, that reflection was only appeared in ecms on 1 June 2026. The manner in which ecms operates is that without paying the court fees, any filing made in the system cannot be reflected until the fee is paid. As such, this court was obliged to perusal the record in case the submission was filed timely. It is on record Exchequer Receipt No GWX10222840012 is dated 1 June 2026 for the Reply Submission. This was eleven days of the filing of the Reply submission by the applicant. It is well beyond time recognised by law in this jurisdiction as per the Rule 2 of the he Judicature and
22 | P a g e Application of Laws (Electronic Filing) (Amendment) Rules, 2025 GN No 609 published on 17/10/2025. The effect of failure to pay timely within seven days deems the document to have been rejected. Having paid the court fee on 1 June 2026, the applicant cannot rescue the document whose deadlines was set on 22 May 2026 as the payment is not within prescribed time. Failure to file the submissions in law is equated to failure to appear for hearing thus consequences of failure to appear on hearing would befall whoever fails to honour the court’s directives. This was the principle in the case of Anna Zakaria v Reniel Marthini (Land Appeal No.48 of 2023) [2024] TZHC 531 (22 February 2024) (TANZLII) at page 3, the court stated that: It is settled law that failure to file written submission in support of any matter, it tantamount to failure to appear on the date the matter is fixed for hearing. The remedy is to have the matter dismissed for want of prosecution. It is lucid from this decision that appropriate order is for dismissal of
23 | P a g e the preliminary objection or case/application of the party who fails to adhere to the court’s order. However, in case it is the opponent party who fails, the court is entitled to hear that party instituting application ex parte. As the applicant failed deliberately to file reply submission against the preliminary objection, such inaction amounts to failure to appear on date set for hearing and not otherwise. The effect of failure to appear on hearing date or file written submission on appointed date would be to consider the the preliminary objection was not opposed. This is for the reason that court orders must be complied with for orderly determination of cases. The guidance can be obtained in the case of Karori Chogoro vs Waitihache Merengo (Civil Appeal No. 164 of 2018) [2022] TZCA 83 (1 March 2022) (TANZLII), at page 12, the Court held that: We think and firmly believe that the sanctity of court or Tribunal orders demands that those orders must be complied with.
24 | P a g e The same position was taken in the case of Tabitha Maro vs Raddy Fibresolution Ltd (Civil Case 214 of 2018) [2019] TZHC 12 (24 October 2019) (TANZLII), at page 2, the High Court (Hon. De-Mello, J.: as then was) observed that: As for the non-compliance of court orders, it is the case of TBL vs. Edson Dhobe , Misc. Application No. 96 of 2006 (Unreported) where the above was reaffirmed, as the Court observed: “Courts orders should be respected and complied with. Courts should not condone such failures. To do so is to set bad precedent and invite chaos. This should not be allowed to occur. Always Courts should exercise firm control over proceedings.” Given the inaction of the applicant in opposing the preliminary objection, there is no doubts that the question of the reference being filed well out of time stands unopposed. As a result, this limb also appears to dispose the first ground of preliminary objection. On account of both limbs in the first ground of preliminary objection, it appears to this court that the application for reference against the
25 | P a g e decision of taxing officer was preferred beyond time prescribed by the law. Thus, the preliminary objection has merits and it is upheld. Having found that the preliminary objection is meritorious on the application for reference being filed hopelessly out of time, the provisions of the Law of Limitation Act, Cap 89 R.E. 2023 comes into effect. Section 3 of the Law of Limitation Act, Cap 89 R.E. 2023 is explicitly lucid that any matter preferred beyond the prescribed time deserves dismissal. In case of Ronilick E. K. Mchami vs The Registered Trustees of the Evangelical Lutheran Church in Tanzania & Another (Civil Appeal No. 171 of 2022) [2025] TZCA 614 (24 June 2025) (TANZLII), at page 9, the Court held that: It is settled law that once an application is declared time- barred by a court, generally, there is no direct remedy to revive it, and dismissal is the usual outcome. This is clearly provided under section 3 (1) of the Law of Limitation Act, that gives power to the courts to dismiss matters found to be instituted outside the prescribed time. The High Court in the Labour Revision No. 5 of 2011 having found the application was time barred, it ought to have dismissed the
26 | P a g e same. See the case of Barclays Bank Tanzania Limited v. Phylisiah Hussein Mcheni (Civil Appeal No. 19 of 2016) [2021] TZCA 202. By this guidance of the superior court of the land, it is obvious that the whole application for reference is bound to collapse for being preferred out of time. Thus, the application for reference in Civil Reference No. 31768 of 2025 is hereby dismissed for being preferred hopelessly out of time with costs. It is so ordered. DATED and DELIVERED at Dodoma this 3 rd day of June 2026. E.E. LONGOPA JUDGE 03/06/2026.