Foundation for Upholding vs Salome Isaya (Miscellaneous Civil Application No.18678 of 2025) [2025] TZHC 8507 (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.18678 OF 2025 (Arising from Civil Appeal No . 000030987 of 2024 in Ubungo District Court at Ubungo , originating from Civil Case No.191 of 2024 in Ubungo Primary Court at Kimara ) FOUNDATION FOR UPHOLDING ……………………………………………APPLICANT Vs. SALOME ISAYA …………………………………………………………… . RESPONDENT RULING Date of last Order: 22 - 10 - 2025 Date of Ruling: 19 - 12 - 2025 B. K.PHILLIP,J The applicant moved this court under section 14 of the Limitation Act , sections 103 and 105 of the Civil Procedure Code ( “ CPC”), praying for an order for extension of time to file an appeal against the judgment of the District Court of Ubungo at Ubungo which upheld the judgment of the primary of Ubungo at Kimara (Hereinafter referred to as “ The trial Court”) . The application is supported by an affidavit sworn by Mr. Josephat Joseph , the applicant’s principal officer. The respondent filed a counter - af fidavit in opposition to the application.

2 At the hearing of this application, both parties appeared in person. The application was heard viva voce . Submitting for the application Mr. Josephat Joseph, the applicant’s principal officer , argued that t he delay in filing the appeal against the impugned judgment was due to the fact that he was sick, thus he was unable to follow up on the case and engage an advocate to assist him in prepare and lodge the appeal within the time prescribed by the law. He lodged this application because he is aggrieved by the trial court’s judgment. To cement his arguments , he referred this court to the hospital ca rd annexed to his affidavit in support of this application. He insisted that the hospital card shows the date of his admission in Hospital . He went on to argue that what is depo s ed in the respondent’s counter - affidavit , in which the respondent assert ed tha t he was not sick and that he was attending in court in the application for execution , is not true. The hearing of the application for execution started on 4th July 2025 and continued on subsequent dates , whereas he was sick from 30th May 2025, and was adm itted to the hospital . He was discharged on 14th June 2025 . The doctor directed him to undergo physiotherapy treatment from 30th June 2025, which is why he was unable to follow up on the case. He implored this court to grant this application .

3 In rebuttal , the respondent disputed the applicant’s assertions. He argued that o n 29 th May 2025 she served the applicant with a summons to appear in court i n application for execution . The a pplicant appeared in court on 5 th June 2025 in th at application . The application was then adjourned to 3rd July 2025, and the applicant appeared in court on that date before Hon. Banza . The case was adjourned again to 7 th August 2025. The reafter , the app licant lodged his complaints to Legal and Human Rights Centre (“LHRC”) . She received a call from an LHRC officer who told her that the respondent had lodged complaints with the LHRC office and that he was willing to pay the decretal sum in instalments . T h e LHRC officer advised her to accept the payments of the decretal sum in instalments. On 7th August 2025, she attended in court with the respondent before Hon. Banza. When the applicant was asked about the payments of the decretal sum , he told H on . Banza that he had appealed against the judgment intended to be executed . Furthermore, t he respondent insisted that the applicant was not telling the truth before this court. He does not want to pay her money.

4 In rejoinder , the applicant reiterate d his submission in chief . He maintained that he was sic k . A fter his recovery, he had to raise funds for engaging an advocate to assist him in preparing this application. The position of the law is that in an application for extension of time , the applicant has to account for each day of delay by giving good cause for delay. Even a single day of delay must be accounted for; [see the case of B ushiri H assan Vs . L atifa L ukio M ashayo, Civil Applic ation No.03 of 2007 , (unreported)]. What amounts to a good reason for the delay is subjective . I t depends on the circumstances of each case. Our courts have set some factors for consideration in establishing the good cause for the delay . For instance , in L yamuya Construction Company Limited Vs Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil application No. 2 of 2010 (unreported), the Court stipulated the following factors as guidance in determining an application for an extension of time. i) The applicant must account for all periods of delay . ii) The delay should not be inordinate. iii) The applicant must show diligence in the prosecution of the ac tion that he intends to take.

5 iv) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance , such as the illegality of the decision sought to be challenged . In t h is application , the applicant’s affidavit reveals that the impugned judgment was delivered on 16th May 2025, and the applicant was provided with it on 29 th May 2025. However, he alleged that on 30 th May 2025 , he fell sick and was admitted to hospital for two weeks . Thereafter, he was discharged with instructions to report to the hospital weekly and to rest for at least two weeks. After his recovery , he started working on his appeal. Moreover, the applicant deponed that the trial court denied him the right to be heard. The case was heard ex parte, though he was present in court, because the trial M agistrate refused to adjourn the case to await his advocate, who was not present on the hearing date because he had travelled for his wedding . As alluded to earlier in t his Ruling , the respondent refuted the applicant’s allegation that he was ill and was denied the right to be heard . I n h er counter - affidavit, the respondent deposed that the applicant was not

6 sick . He refused to prese nt his defence before the trial court, thus depriving himself of his right to be heard. I have noted that the applicant has not disclosed the date of his recovery, on which he was able to follow up on his appeal . This is fatal as it has denied this court the necessary information to compute the days of delay correctly. Whatever the case, t he applicant deposed that by 29 th May 2025 , he had obtained a copy of the impugned judgment, which means that he was provided with a copy of the impugne d judgment within 13 days of the date of the judgment. Since the applicant alleged that f rom 30 th May 2025, he was sick and admitted to the hospital for 14 days, and thereafter he was discharged and advised to rest for at least 14 days, then, the days dur ing which the applicant was unable to move and meet people were only about 28 days , that is , from 30 th May 2025 to 28 th June 2025. I am of the settled opinion that, t hereafter, the applicant was capable of communicating with an advocate if he wished to d o so , bearing in mind that he had already been supplied with the impugned judgment. As per the court’s records, this application was filed on 29 th July 2025. The applicant has not accounted for the delay from 29th June 2025 to 28th July 2025, which is a day before the filing of this application .

7 Additionally, in his affidavit , the applicant alleged that the trial court denied him his right to be heard; hence, the trial court's judgment , which the District Court upheld, is tainted with illegality. The primary court ’s proceedings annexed to the applicant’s affidavit reveal that the applicant was accorded the right to be heard , but he failed to utilise it. Before the trial court, the case was adj ourned several times at the applicant's and his advocate's instance. I t reached a point where the trial court could not accept the applicant's excuses for the adjournment of the case, which were based on the absence of his advocate, who had not notified th e court of his absence . Thus, the alleged illegality is misconceived and unfounded. Since the applicant failed to account for each day of delay , this application is dismissed for lack of merit . The applicant shall bear the costs of this application.

8 Date at Dar es Salaam , this 19 th day of December 2025 . B.K.PHILLIP JUDGE