FNB Tanzania Limited and Another vs Grace Japhet Maginga and Others (Miscellaneous Land Application No. 13380 of 2025) [2025] TZHC 8861 (19 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB - REGISTRY) AT MWANZA MISCELLANEOUS LAND APPLICATION NO. 13380 OF 2025 (Arising from Misc. Land Application No. 4193 of 2025 in the High Court (Mwanza Sub - Registry at Mwanza) FNB TANZANIA LIMITED……………………………………………..1 ST APPLICANT EXIM BANK TANZANIA LTD…………………………………………2 ND APPLICANT VERSUS GRACE JAPHET MAGINGA…………………………………………1 ST RESPONDENT NKAYA CO. LTD…………………………………………………… ... 2 ND RESPONDENT EDISABA GENERAL SUPPLY CO. LTD…………………………..3 RD RESPONDENT RULING 15 th & 19 th December, 2025 KAMANA, J. This ruling arises from an application seeking to set aside the dismissal order in Miscellaneous Land Application No. 4193 of 2025. According to the affidavit sworn by Sibogo Maduhu, the Principal Officer of the second applicant and holder of a power of attorney for the first applicant, the said application was dismissed due to the non - appearance of the applicants before the Court. It is deposed that their absence was occasioned by the appearance of an advocate whose practicing certificate had expired and was, therefore, invalid at the material time. 2 According to the affidavit and the submissions advanced by Mr. Anthony Muyengi, learned C ounsel for the applicants, it was averred that the applicants had engaged Advocate Augustine Ndomba to represent them in the dismissed application, which sought an extension of time to appeal. It was further deposed that, on the date scheduled for hearing, the Court was informed that Advocate Lugano Ki t angalala, who appeared purporting to represent the applicants, did not possess a valid practicing certificate. This, according to the affidavit, prompted the Court to dismiss the matter for non - appearance of the applicants. It was averred that the appearance of Advocate Ki t angalala on the material date was a result of instructions from Advocate Ndomba, who, through his affidavit, admitted to having assigned the former to represent the applicants, albeit being unaware that he did not possess a valid practicing certificate at the time. In the circumstances, it was the applicants’ contention that the dismissal of their application was not attributable to their own negligence, and thus, they urged this Court to exercise its discretion to set aside the dismissal order . The application was strongly opposed through a counter - affidavit sworn by Grace Japhet Maginga, the first respondent, and elaborated upon by Mr. Samuel Kazenga, learned Counsel. In the said counter - affidavit, the first respondent contended that Mr. Ki t angalala not only appeared on behalf of the applicants without a valid practicing certificate 3 but also improperly deposed an affidavit while lacking the requisite legal qualification. It was her position that the applicants cannot distance themselves from the negligence that led to the dismissal of their application. The first respondent’s assertion regarding Advocate Kitangalala’s affidavit , specifically, that it was deposed while he lacked a valid practi c ing certificate , was not challenged by the applicants through a reply to the counter - affidavit. In the circumstances, this omission implies that the applicants did not dispute or take issue with that particular allegation. This made me to peruse ewakili system with a view to ascertaining the status of Advocate Kitangalala on 21 st February, 2025, when he deposed the affidavit. According to the system, Advocate Kitangalala’s practicing certificate expired on 3 1 st December , 202 4 , and was not renewed until 24 th July, 2025. This implies that on 21 st February, 2025, when he deposed the affidavit, Advocate Kitangalala’s practicing certificate had expired. The legal position is settled that a practicing certificate for an advocate expires on 3 1 st December of each year. However, where an advocate renews the practic ing certificate on or before 1 st February of the succeeding year, the law accords retrospective recognition to that advocate, rendering any legal acts undertaken during the intervening 4 period valid and lawful. In this, I am persuaded by the position of this C ourt in the case of Wellworth Hotels and Lodges Ltd v. East Africa Canvas Co Ltd and Others , Commercial Case 5 of 2020 - HC (Unreported), where it was stated: ‘And, as correctly argued by the learned counsel for the 4 th and 5 th Defendants, although section 38 (1) and (2) of Cap.341 [R.E.2019] gives a grace period of renewal of one’s certificate of practice up to the 1 st February of each year, with retrospective renewal validity effectively from the 1 st day of January, unfortunately...[the plaintiffs’ counsel] cannot benefit from it because, his certificate was renewed on the 3 rd day of February.’ That being the settled legal position, for the present application to be competent, it was imperative that Mr. Kitangalala, whose practising certificate expired on 31 st December 2024, renewed the same on or before 1 st February 2025. His failure to do so renders all acts undertaken in the capacity of an advocate during the intervening period , including the swearing of the affidavit in support of th e dismissed application , legally null and void. Given the foregoing, it is my considered view that an advocate who does not hold a valid practi c ing certificate cannot lawfully swear an affidavit in the capacity of an advocate, unless the certificate is renewed 5 on or before 1 st February of the ensuing year. In the eyes of the law, such a person is not recognised as an advocate during the intervening period and, as such, lacks the requisite legal standing to undertake acts that are statutorily reserved for advocates, including the swearing of affidavits in that capacity. Having taken that position, I find the application devoid of merit. It is inconceivable for this Court to restore a dismissed application that was supported by an affidavit deposed by a person who, despite purporting to act in the capacity of an advocate, did not hold a valid practi c ing certificate at the material time. Such a defect goes to the root of the competence of the application. Accordingly, the application is hereby struck out with costs. Order accordingly. DATED at MWANZA this 1 9 th December, 2025. KS KAMANA JUDGE