Noel John Mtaya vs Ewarema Consult Ltd (Miscellaneous Civil Application No. 000022634 of 2025) [2025] TZHC 8517 (19 December 2025)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 000022634 OF 2025 NOEL JOHN MTAYA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS EWAREMA CONSULT LTD .............................. RESPONDENT / DEFENDANT RULING NGUNYALE, J Date of last order: 25.11.2025 Date of ruling: 19.12.2025 The applicant filed the present application praying the court to be pleased to grant extension of time within which he can file an appeal out of time before this court against the decision of Kinondoni District Court delivered on 29 th January 2025 in Civil Case No. 8500 of 2024. The application has been filed under Section 14 (1) of the Law of Limitation Act Cap 89 R. E 2023 at the instance of an affidavit sworn by the applicant one Noel John Mtaya. Page. 1

According to the affidavit, the applicant deponed that he was the plaintiff in the original Civil Case No. 8500 of 2024 which was heard inter parties and on 29 th day of January 2025 the court delivered its decision striking out the case on ground that it had been filed prematurely owing to the existence of an arbitration clause in the said breached contract. He mentioned the reasons for the delay that; he was in the process of complying to the order of invoking procedures of arbitration but he failed as the costs of arbitration were very high and he could not afford. Further he stated that in his further research he discovered that the presence of the arbitration clause does not oust the jurisdiction of the court because the same is a creature of the statute. Since the jurisdiction of the court is not ousted, he preferred the present application to seek extension of time to file an appeal against the ruling of the District Court of Kinondoni on the ground of illegality. According to the applicant, the delay of filing the appeal was due to unavoidable circumstances beyond his control, and not due to negligence on his part because he remained diligent in pursuing his rights since the decision of the trial court was pronounced. The application was opposed by the counter affidavit of the respondent as deponed by his principal officer one Linus William Materu. The deponent said that the applicant showed reluctance in pursuing arbitration process to resolve the contractual dispute between them. Page. 2

The matter was heard by way of written submissions; the applicant’s submissions were filed by Ms. Rose Omuga learned Advocate from the Human Rights and Legal aid centre while the respondent’s submissions were filed by the service of legal aid from the Law School of Tanzania. Upon a careful scrutiny of the affidavits for and against the application and the relevant submissions thereof, the main issue for my determination is whether the ground of illegality has been established by the applicant to warrant this court to grant an application for extension of time. It is settled law that illegality is of sufficient importance to warrant extension of time because the courts cannot allow illegal decisions to stand merely for reasons of procedural delays. The affidavit of the applicant is to the effect that Civil Case No. 8500 of 2024 was heard on merit however the trial Magistrate decided to deviate from the merits of the case and opted to base on a technicality that the parties avoided to comply to the arbitration clause. The trial Court said that the matter has been filed prematurely because the same was yet to be taken to the arbitrator as per the contract made between the parties thus it is incompetent before this court until the parties refer the dispute to the agreed forum of dispute. The applicant in his submission submitted that substantive justice ought to prevail instead of technicalities. The trial Magistrate denied him a right to be heard. He cited the case of Sebastian Ndauka versus Grace Luhotora , Civil Page. 3

Application No. 04 of 2014 Court of Appeal of Tanzania (unreported) where it was observed that: - “where a party is denied the right to be heard due to reasons beyond their control, such decision may be set aside to serve the interest of justice.” The respondent in his side stressed that extension of time is granted at the discretion of the court upon exhibiting good case. He cited the case of Finca (T) Limited and Kipondogoro Auction Mart versus Boniface Mwalukisa , Civil Application NO. 589/12 of 2018, Court of Appeal of Tanzania. He was of the view that the applicant in this case has not demonstrated good cause to warrant grant of extension of time because he has not touched factor relevant for grant of extension of time as laid in the famous case of Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women’s Christian Association of Tanzania [2011] TZCA Civil Application No. 2 of 2010 Court of Appeal of Tanzania at Arusha. Upon a careful perusal of the record, it is my settled view that the trial Magistrate did not afford the parties an opportunity to be heard on the competence of the case in light of the arbitration clause contained in their contract, as correctly submitted by the Applicant. The failure to afford the parties a right to be heard amounts to an illegality, as denial of the right to be heard is a fatal omission in the administration of justice. Such failure constitutes an illegality and forms a valid ground for granting an extension of time. Courts are enjoined to prioritize the correction of violations of the Page. 4

principles of natural justice over strict adherence to limitation rules. The case of Yazid Kassim Mbakileki versus CRDB (1996) LTD & Another , Civil Reference No. 14/04 of 2018 Court of Appeal of Tanzania at Bukoba it was held that: - “In view of the settled position of the law, we are satisfied that since none of the parties was availed an opportunity to be heard this vitiated the entire proceeding before the High Court. As such, we agree with the applicant that this was an illegality and a special circumstance constituting good cause for extension of time …” Without delving into the merits of the intended appeal, which are reserved for determination by the appellate court, I am satisfied that the applicant has established an illegality sufficient to constitute good cause for extension of time. In the end result, the applicant has demonstrated good cause for the grant of extension of time. The application is granted, the applicant is given 21 days from today to file the intended appeal. Order accordingly. Dated at Dar es Salaam this 19 day of December 2025. th Dated at DAR ES SALAAM this 19th of December 2025 . D. P NGUNYALE JUDGE OF THE HIGH COURT Page. 5