Magabe Nyamonge vs Al Rahby School Ltd and Others (Miscellaneous Land Application No. 22734 of 2025) [2026] TZHC 2563 (22 May 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB - REGISTRY AT MWANZA MISCELLANEOUS LAND APPLICATION NO. 22734 OF 2025 (Arising from the dismissed order in Land Appeal No. 19151 of 2024 of the High Court of Tanzania – Mwanza dated 12 /0 6 /2025) MAGABE NYAMONGE………………………………………………………… APPLICANT VERSUS AL RAHBY SCHOOL LTD……….………………………………………1 ST RESPONDENT LADISLAUS RUHUSI…………………………………………………...2 ND RESPONDENT REGISTERED TRUSTEES OF EAGT SAYUNI ………………………3 RD RESPONDENT HASSAN MATULA……………………………………………… . …… …. 4 TH RESPONDENT RULING 23/04 & 22/05/2026 . E. L. NGIGWANA, J. This is an application for an extension of time to file an application to set aside the dismiss al order of this court dated 12/06/2025 and restore of Land Appeal No. 19151 of 202 4 , which this court dismissed for want of prosecution due to failure of the applicant to serve the 2 nd , 3 rd , and 5 th respondents, pursuant to the order of this court dated 23 /0 4 /202 5 . The application was brought under section 14 (1) of the Law of Limitation Act [Cap 89 R.E. 2023], accompanied by the applicant’s affidavit. 2 The 1 st respondent filed a counter - affidavit to contest the application, but other respondents did not. Briefly, the facts leading to th is application as per available records, including the applicant’s affidavit, are that, in 2021, the applicant filed Application No. 226 of 2021 before the District Land and Housing Tribunal (DLHT) for Mwanza against the respondents, claiming ownership of Plots No. 657, 658, 659, 660, and 661 Block “A” Kitangiri Kabuhoro Mwanza City, alleged to have been wrongly allocated to the 1 st respondent, AL RAHBY SCHOOL LTD, by Mwanza City Council. The matter proceeded ex parte agains t the respondents and was finally decided in favor of the 1 st respondent . The applicant was aggrieved by the decision of the DLHT and hence knocked on the doors of this court vide Land Appeal No. 19151 of 202 4, but the same was dismissed on 12/06/2025 for want of prosecution O n 18/06/2025, the applicant filed Miscellaneous Land Application No. 145 7 3 of 2025, seeking to set aside the said dismissal order and restoratio n of Land Appeal No. 19151 of 2024, but the same was struck out on the 28 th day of August, 2025 , for being defective . 3 Thereafter, that is to say , on 8 th September, 2025, the applicant filed t he instant application. The 1 st respondent filed a counter - affidavit sworn by his advocate , Mr. Madulu Ngassa , to contest the application. Service to the 2 nd , 3 rd , and 4 th respondents through ordinary means was unsuccessful because their whereabouts are not known ; as a result, t hey were served by publication through Mwananchi Newspaper dated 03/04/2026, but they entered no appearance or filed their counter - affidavit, and therefore, the hearing proceeded in their absence. At the hearing of this application, the applicant was represented by Mr. Akram Adam, learned counsel, and the first respondent was represented by Mr. Maduhu Ngassa, learned advocate . Submitting in support of the application, Mr. Adam adopted the founding affidavit and reiterated its contents. He went on to submit that the applicant , under paragraphs 4, 5 , and 6 , raises the ground of technical delay. He elaborated that Application No. 14573 of 2025 was filed within time; therefore, the days from 12/06/2025, when the appeal was dismissed for want of prosecution, until the 8 th of September, 2025 , when the instant application was filed , constitute a technical delay that is excusable in law. He placed reliance on the case of Fortunatus Masha v ersus William Shija and Another (1997) TLR 154 , 4 where it was emphasized that technical delay constitutes sufficient ground for extension of time. He explained that Application No. 14573 of 2025 was filed within time , but it was struck out on 28/08/2025, whereas after six (6) days of seeking an advocate and preparation of the necessary document s , the instant application was filed . He concluded his brief submission , urging the court to grant this application. In reply, Mr. Maduhu Ngassa argued that the applicant has not accounted for each day o f delay from 28/08/2025 , when Application No. 14573 of 2025 was struck out , until 8 /09/2025 , when the instant application was filed. He cited the case of Lyamuya Construction Co. Ltd v ersus Board of Registered Trustees of Young Women’s Christian Association of Tanzania (Civil Application No. 2 of 2010 [2011] TZCA 4 (3 rd October, 2011) TanzLII , and Mega Builders Ltd v ersus D.P.I Simba Ltd (Civil Application No. 319 of 2020 (2021) TZCA 55 (25 th February, 2021) TanzLII to support his stance that each day of delay has to be counted for . He concluded his submission praying for the dismissal of this application with costs. Having read the chamber summons, affidavits, and their attachments and considered the parties’ submissions, the issue for determination is 5 whether the applicant has demonstrated sufficient cause to warrant this court to exercise its discretion to extend the time. As pointed out earlier, this application was preferred under section 14(1) of the Law of Limitation Act [Cap. 89 R.E. 2023], which provides that: “Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application.” (Emphasis supplied). The above provision uses the word “may,” meaning this court has the discretion to grant or refuse an extension of time. However, extension of time may only be granted where it has been sufficiently established that the delay was due to sufficient cause . This position was articulated in several cases, including Benedict Mumelo versus Bank of Tanzania [2006] 1EA 227, where it was held that: "It is trite law that an application for extension of time is entirely in the discretion of the court to grant or refuse it, and that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause. 6 What constitutes sufficient cause depends on the circumstances of each case. In the matter at hand, the ground advanced by the applicant is no more than a technical delay. It is a trite law that technical delay may constitute sufficient cause for extension of time. In the case of ZET Construction Company Limited v ersus Kalokora Bwesha & Cecilia Boniface Shiyo (Civil Application No. 314/01 of 2022) [2024] TZCA 197 (19 March 2024), TanzLII, it was held that: “It is a trite law that any delay arising from the time the applicant used in the court’s corridor pursuing his right, whether incompetently or otherwise, is not an actual delay. It is referred to as technical delay, which constitutes good cause for the gr ant of an extension of time.” Section 21 (2) of the LLA provides that : “ In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance or in a court of appeal, against the same party for the same relief, shall be excluded where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.” 7 Similarly, in the case of Ali Abdallah Abdi versus Selemani Said Marshed (Civil Application No. 794/17 of 2023) [2025] TZCA 570 (6 June 2025), TanzLII, it was held that : "As slotted during the factual background, the sole ground calling for the exercise of that discretion is the technical delay. I understand that technical delay, if proved, is a sufficient cause to enlarge time, as was held in Fortunatus Masha v. William Shija and Another [1997] T.L.R. 154. ” In the instant matter, the issue of technical delay has been sufficiently demonstrated by the applicant. The argument by counsel for the 1 st respondent that the applicant has not accounted for an actual delay from 28/08/2025, when Application No. 14573 of 2025 was struck out, until 8/09/2025, when the instant application was filed , cannot stand because the applicant, who is a completely blind and crippled person, stated that it took six days to seek an advocate, prepare the necessary documents, and promptly file this application. It is the finding of this court that all six days of delay from 28/08/2025 until the filing of the instant application were accounted for. Furthermore, the counsel for the 1 st respondent did not explain if there is any prejudice to be suffered by the 1 st respondent if this application is granted. 8 In the upshot, it is the finding of this Court that the application has met the threshold for the Court to exercise its discretion to grant it. The applicant is given fourteen (14) days, which shall start to run from the 25 th day of May 2026, to lodge an application to set aside the dismissal order of this court dated 12/06/2025 and restore Land Appeal No. 19151 of 202 4. It is so ordered. Dated at Mwanza, this 22 nd day of May, 2026 . E. L. Ngigwana Judge 22 /05/2025 Delivered this 22 nd day of May, 2026, in the presence of the applicant in person, Hon. Baraka Mafuru - JLA, and M r. Christopher Charles - RMA. E. L. Ngigwana Judge 22/05/2026