Caroline Lemki vs Mark William Lemki (Miscellaneous Civil Application No. 17165 of 2025) [2025] TZHC 8589 (19 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 17165 OF 2025 CAROLINE LEMKI …………………………………………………..APPLICANT VERSUS MARK WILLIAM LEMKI …………………………………………RESPONDENT RULING Date of last order: 17/12/2025 Date of ruling: 19/12/2025 A.A. MBAGWA J. This is an application for the extension of time within which to lodge a notice of appeal against the judgment and decree of this Court (Dyansobera J) delivered on 17 th November 2015. The application has been brought by way of a chamber summons made under Section 14 (1) of the Appellate Jurisdiction Act [Cap 141 R.E 2023], Rule 10 and 47 of the Court of Appeal Rules 2019 as amended . To support the prayers, the applicant attached two affidavits sworn by Caroline L e mki , the a pplicant, and Sylivatus Sylivanus May e nga , the applicant’s counsel. 2 According to the applicant’s depositions and the attached Annexures, the applicant was dissatisfied with the judgment and decree of this Court (Hon. Dyansobera J), Civil Appeal No. 133 of 2013, which were delivered on 17 th November 2015. As such, the applicant timely appealed against this decision of this Court via Civil Appeal No. 341 of 2021. However, on 17 th June 2025, when Civil Appeal No. 341 of 2021 was called on for the hearing, upon probe by the Court, the applicant withdrew the appeal for want of necessary documents. Following the withdrawal of Civil Appeal No. 341 of 2021, the applicant is seeking an extension of time to file the notice of appeal to restart the appeal process. Upon service, the application was contested by the respondent through the counter-Affidavits of Mr. Mark William Lemki, the respondent, and Mr Respicius Didace, the respondent’s counsel. In essence, the respondent states that the applicant has not demonstrated sufficient grounds for the grant of the extension of time. The respondent further contends that the present application is an abuse of the court process. On 17 th November 2025, the matter came for the hearing, Messrs Sylvatus Sylvanus Mayenga and Stephen Mosha, learned advocates, appeared for 3 the applicant, whereas the respondent was represented by Mr Respicius Didace, learned advocate. Submitting in support of the application, Mr Mayenga adopted both affidavits in support of the application to form part of the applicant’s submission in chief. Mr Mayenga clarified that from paragraphs 4 to 8 of the affidavit of Caroline Lemki, it was apparent that after the delivery of the judgment, the applicant timely lodged the appeal to the Court of Appeal via Civil Appeal No. 341 of 2021. Thus, from 17 th November 2015, when the judgment sought to be impugned was delivered until 17 th June 2025, when Civil Appeal No. 341 of 2021 was withdrawn, the applicant was in the Court corridors prosecuting his appeal. Again, Mr Mayenga explained that by looking at both affidavits in support of the application, it is clear that after withdrawing Civil Appeal No. 341 of 2021, the applicant has diligently taken the necessary steps to file the present application. Mr Mayenga concluded that the applicant has advanced sufficient grounds to warrant the extension of time. The learned counsel amplified the main reason for the applicant’s failure to lodge the 4 notice of appeal is technical delay, which is considered a sufficient ground for granting the extension of time. To bolster his argument, the applicant’s learned counsel referred this Court to the case of Filson Mushi vs Jitegemee Saccos LTD, Civil Application No. 313/05 of 2021, CAT at Moshi on pages 7 and 8. Furthermore, Mr Mayenga had it that the respondent would not be prejudiced by the grant of the extension of time. On this, he relied on the decision of this Court in Nsajigwa Wilfred Mwakilasa vs the Republic, Misc. Criminal Application No. 48 of 2012, HC at Mbeya. Finally, the applicant’s counsel implored this Court to grant the application and order each party to bear its costs. In rebuttal, Mr Respicius Didace, learned counsel for the respondent, was at odds with the application. The respondent’s counsel submitted that the application is pegged on technical delay, but the applicant was not entitled to rely on this ground. He vehemently argued that the present application is devoid of merit, legally untenable, and an abuse of the Court's discretion. He expounded that the alleged technical delay was inordinate, self-created, and not adequately explained. Mr Didace expounded that what led to the withdrawal of Civil Appeal No. 341 of 2021 was the 5 advocate’s negligence in preparing the record of appeal. Referring to the cases of Filson Mushi vs Jitegemee Saccos LTD on page 8 and Mussa Shaibu Msangi vs Summri High Class Limited and Another, Misc. Commercial Application No. 16987 of 2025, HC Commercial, on page 7, Mr Didace strongly submitted that the Court of Appeal clearly pronounced itself that the advocate’s inaction or negligence does not constitute good cause. Regarding the issue of prejudice, Mr Didace was opined that his client would be prejudiced in the event the application is granted because that would open up endless litigation of the matter. In the end, the respondent’s counsel urged the Court to dismiss the application with costs. In rejoinder, the applicant’s counsel reiterated that, whereas the litigation must come to an end, the Court is enjoined to ensure that litigations are finally concluded through a fair and judicial process, which entails the parties’ right to appeal. He re stated his submissions in chief. Upon a critical appraisal of the parties’ depositions and earnest consideration of the rival submissions, the pivotal issue for determination 6 of this matter is whether the applicant deserves the prayers sought in this application, that is, whether this Court should grant the extension of time. In determining the foregoing issue, the relevant question is whether the defendant has demonstrated sufficient cause to warrant this Court to extend the time. It is a settled position of law that there is no decisive factor of what a sufficient cause is. Rather, the sufficient cause may be determined dependent on the peculiar circumstances of each case. See the cases of Finca T. Limited & Another v. Boniface Mwalukisa (Civil Application No. 589 of 2018) [2019] TZCA 561 (15th May, 2019, TANZLII), and Anney Anney vs Teonas Mchana and Another, Civil Application No. 87/02 of 2023, CAT at Arusha. In the instant matter, the applicant has demonstrated that from 17 th November 2015, when the judgment sought to be impugned was delivered by this Court, the applicant has been in court to pursue his appeal. Further, it is not disputed that Civil Appeal No. 341 of 2021, which was withdrawn on 17 th June 2025 had been filed within time. In addition, after the withdrawal of Civil Appeal No. 341 of 2021, the applicant promptly filed the present application. 7 In the case of Jaliya Felix Rutaihwa vs Kalokora Bwesha & Another, Civil Application No. 392/01 of 2020, CAT at Dar es Salaam, the Court of Appeal held that in determining sufficient cause for the extension of time, the Court has to take into account various factors including; illegality, the length of delay involved, reasons for the delay, the degree of prejudice, if any, that each party is likely to suffer, the diligence of a party, the conduct of the parties, and the need to balance the interests of a party who has a decision in his favour against the interests of a party who has a constitutionally underpinned right of appeal. Having considered all the foregoing, I am of the unfeigned opinion that, despite the length of time that the matter has been in Court, the applicant deserves the extension of time to exercise her constitutional right of appeal. In view thereof, I allow the application. The applicant is given fourteen (14) days from the date of this ruling to lodge the notice of appeal. Each party should bear their costs. It is so ordered. Dated at Dar es Salaam this 19 th day of December 2025. 8 A.A. Mbagwa JUDGE 19/12/2025