Rafael Kinyina vs Joshua Ntimba (Misc. Land Application No. 8852 of 2025) [2025] TZHC 8394 (18 December 2025)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB - REGISTRY) AT BUKOBA MISC. LAND APPLICATION NO. 8852 OF 2025 (Arising from LandAppeal No. 9/2018 of the High Court of United Republic of Tanzania at Sub - Registry ofBukoba before Hon. A.A. Bahati, dated 16/03/2020, originating from LandApplication No. 215/2023 ofBukoba DLHT) RAFAEL KINYINA ........................................................ APPLICANT VERSUS JOSHUA NTIMBA......................................................RESPONDENT RULING 11t hDecember & 18thDecember, 2025 POMO, 3 The applicant, RAFAEL KINYINA, brought this application under section 11 (D of the Appellate Jurisdiction Act TCap. 141 R.E. 20191, seeking for: -

1. Leave to extend time to file Notice o fAppeal to appeal to Court o fAppeal o f Tanzania.
2. Costs o f this Application be granted
3. Any other order (s) and reliefs as this Honorable Court deem fit and equitable to grant The application is supported by an affidavit sworn by applicant himself, in which the grounds for the application are fully set out. In response, the

respondent filed a counter-affidavit sworn by him, disputing the matters deposed in the applicant's affidavit. Briefly, the factual background giving rise to the present application is as follows. Vide Land Application No. 215 of 2013 before the District Land and Housing Tribunal for Bukoba (the Tribunal), the Applicant unsuccessfully sued the respondent. Dissatisfied with that decision, he filed Land Appeal No. 9 of 2018 before this High Court, which also he lost. On 6 April 2020, he timely filed a Notice of Appeal to the Court of Appeal. However, before he could file an application for leave to appeal to the Court of Appeal of Tanzania, he fell into a prolonged illness which made him attend several medical treatments from several medical facilities. In justifying illness, the applicant attached medical chits for the treatment he went through all along up to the time of his improvement from illness. The same forms paragraph 5 to 10 of his affidavit. By the time he recovered, a considerable period had elapsed and the Notice of Appeal lodged on 6 April 2020 had lapsed. It is in those circumstances that the present application was filed. When the application came on for hearing, the applicant appeared in person, unrepresented, whereas the respondent was represented by Mr.

Projestus Prosper Mulokozi, learned counsel. I directed that the application be disposed of by way of written submissions. In support of the application, the applicant adopted the contents of his supporting affidavit as part of his submissions. He submitted that an applicant seeking an extension of time must demonstrate good and sufficient cause for the delay. He contended that his failure to comply with the prescribed time limits was occasioned by prolonged illness, as a result, the Notice of Appeal expired before he could seek leave to appeal or lodge the memorandum of appeal. He further submitted that illness constitutes good cause for the extension of time, and in support of that proposition, he relied on the decision in Wilson R. Kilanga vs Gregory Rubahindura and 3 Others, Misc. Criminal Application No. 18 OF 2022 (Unreported) and that of John David Kashekya vs Attorney General (Civil Application No. 1 of 2012) [2013] TZCA 2346 (14 September 2013) TanzLII. He also cited the cases of Michael Samuel Kyande (Legal Representative of the late Filly Michael Kyande) vs. E.F.C Tanzania M.F.C Limited, (Civil Application No. 669/01 of 2023) [2025] TZCA 461 (23 May 2025) TanzLII, Abdu Athumani Kinumi vs Sofia Hassan (Misc. Land Application No. 88 of 2022) [2023] TZHC 359 (10 February 2023) TanzLII and Basoa Mfaume

vs Ulimwengu Sungura Hamimu (Misc. Land Application 27 of 2021) [2021] TZHC 7159 (15 November 2021) TanzLII. The applicant further contended that this Court ought to exercise its discretion to extend time on account of illegality in the proceedings of the trial tribunal. For instance, he argued that the presiding Chairman determined the matter in favor of the respondent without obtaining or recording the opinions of the two assessors, contrary to the requirements of section 24 of the Land Disputes Courts Act, Cap. 216 R.E. 2019. In his reply submissions, Mr. Mulokozi, learned counsel for the respondent, contended that the grounds relied by the applicant do not suffice in the circumstances of the present case, as the applicant had already lodged a Notice of Appeal before the Court of Appeal of Tanzania. Counsel argued that, although the applicant asserted that the said Notice of Appeal had expired, no evidence was placed before this Court to substantiate that assertion. He maintained that a Notice of Appeal, once lodged, remains valid unless it is either withdrawn by the party who filed it or struck out by the Court of Appeal for failure to lodge the memorandum of appeal, in accordance with Rule 89 of the Tanzania Court of Appeal Rules, 2009. It was further contended that, since the Notice of Appeal remained pending before 4

the Court of Appeal, this Court lacked jurisdiction to entertain the present application for extension of time. In support of that proposition, he relied on section I lf 1 ^ of the Appellate Jurisdiction Act. Without prejudice to the foregoing, and turning to the alleged illegalities, Mr. Mulokozi submitted that the complaints raised by the applicant were misconceived and far-fetched. He argued that the alleged illegalities, if any, arose at the level of the trial tribunal and not in the proceedings of the High Court, whose decision is the subject of the intended appeal. With respect to the complaint concerning the absence of assessors, learned counsel submitted that the matter had already been conclusively addressed and resolved by the High Court. In support of his submissions, he cited the decision in Ibrahim Twahil Kusundwa and Ibrahim Twahil Kusundwa (As an Administrator of the Estate of the Late Twahil Selemani Kusundwa) vs Epimaki S. Makoi and Prim A. Mushi, Civil Application No. 437/17 Of 2022 [2022] TZCA 625 TanzLII. With respect to the ground of illness, he submitted that the applicant cannot properly rely on sickness as a basis for the extension of time. He argued that the particulars relating to the applicant's alleged admission and discharge from medical facilities were insufficiently substantiated. He argued

that, the present application having been filed on 14 April 2025, the applicant was under a duty to give a satisfactory explanation for each day of delay from either 25 November 2022, being the date of his last alleged hospital admission, or at the latest 4 March 2025. Further, he submitted that, given the nature of the applicant's illness, it could not reasonably be concluded that sickness was the sole or principal cause of the delay. As such he asserted that this position offends the settled principle that, for illness to constitute good cause for the extension of time, it must be shown to be the dominant cause of the delay. In support of that stance, he cited the case of Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396 (20 August 2021) TanzLII. During rejoinder, the applicant largely reiterated his submission in chief. However, in response to the respondent's contention that the Notice of Appeal remains pending before the Court of Appeal, he clarified that a Notice of Appeal lapses after the expiry of one hundred and four (104) days. That, upon such lapse, an applicant is required, as a matter of law, to seek an extension of time within which to lodge a fresh Notice of Appeal in accordance with the applicable legal requirements. 6

Having carefully considered the application and rival submissions from both sides, along with the record of the trial tribunal, the central issue now to be determined is whether the present application discloses sufficient merit to warrant the orders sought. Before embarking upon a consideration of the merits of the present application, it is necessary to address the issue raised by the respondent's counsel. He contended that the applicant had already lodged a Notice of Appeal before the High Court, which notice has neither been withdrawn nor struck out. He submitted that the said Notice of Appeal therefore, remains existing, with the consequence that this Court lacks jurisdiction to entertain the present application. The applicant, on the other hand, maintained that the Notice of Appeal lodged on 6 April 2020 lapsed by operation of law due to the expiration of time, and that, as a result, it ceased to have any legal effect. On this, I will seek directives from Rule 91f:n fa ^ ) of the Court of Appeal Rules of 2019 fthe Rules). The same provides: - " 9 1 . Where a party who has lodgeda notice ofappealfails to institute an appeal within the appointed time (a) he shall be deemed to have withdrawn his notice of appeal and shall, unless the Court orders otherwise, be liable to pay the costs o f any persons on whom the notice

o f appeal was served arising from that failure to institute the appeal;" This position was further emphasized in the case of Ramadhani Maabadi & Another vs Maka Serafini (Civil Application No. 12 of 2015) [2016] TZCA 632 (27 July 2016) TanzLII, where at page 5, the Court of Appeal held: - ''As a general rule, a civil appeal ought to be lodged within sixty days after lodging a notice o f appeal (Rule 90 (1)). So, a notice o f appeal serves as a beacon, from which the time for filing an appeal is to be reckoned. I f an appeal is not filed within the sixty days, and is not excepted under the proviso to Rule 90 (1), and (2), the notice of appeal becomes purposeless and lifeless. Unless its existence is extended, it must be deemed to be withdrawn. It has no business remaining in the registry, and the Court has a duty to flush it out regardless o f how its existence comes to its notice." [Also see: Moa General TRAnding Co. Li mited vs Chrisak Farms and Others (Land Case 92 of 2020) [2021] TZHCLandD 212 (31 May 2021) TanzLII]. In view of the foregoing, it is evident that the applicant lodged his Notice of Appeal on 6 April 2020, and that the sixty (60) days prescribed for filing his appeal have long since expired. Consequently, guided by the above provision of the Rule and cited cases, the notice of appeal ceased to exist 8

long time ago. It follows that the issue raised by the respondent is devoid of merit and overrule it. That said and done, I shall therefore proceed to consider the merits of the present application. It is well established in law that a court is empowered to grant an application for extension of time upon a clear demonstration of good cause. [See: Jacob Shija vs Ms Regent Food & Drink Ltd & Another (Civil Application 440 of 2017) [2019] TZCA 56 (3 April 2019) TanzLII]. However, what constitutes good cause cannot be determined by any hard and fast rules, but depends upon the circumstances prevailing in each particular case. This principle has been discussed in the case of Hyansitha Malisa vs John Malisa (Civil Application 167 of 2021) [2023] TZCA 239 (10 May 2023) TanzLII, where, at page 9, the Court of Appeal underscored: - "It follows that, in application for extension o f time, the applicant has to advance good cause for the Court to exercise its discretionary power. What is a good cause is a question o f fact, depending on the facts o f each case." Further, at page 5, in the case of Tanga Cement Co. Ltd vs Jumanne D. Masangwa & Another (Civil Application 6 of 2001) [2004] TZCA 45 (8 April 2004) TanzLII, the Court of Appeal held as follows: - 9

"What amount to sufficient reasons has not been defined. From decided cases, a number o f factors has to be taken into account including whether or not the application has been brought promptly; the absence o f any or valid explanation for the delay; lack o f diligence on the part o f the applicant." From the authorities cited, it is apparent that the terms "sufficient reason" or "good cause" for an extension of time has not been rigidly defined and remain a matter within the discretion of the court. In the present application, the applicant relied upon two grounds in support of his request for an extension of time to file a Notice of Appeal out of time. The first ground relates to illness, while the second concerns alleged illegalities that arose during the proceedings before the trial tribunal. Regarding the ground of illness, the applicant asserted that he commenced suffering from sickness immediately after lodging the Notice of Appeal, which incapacitated him from timely processing an appeal to the Court of Appeal. To substantiate this claim, he annexed to the application a number of medical chits, demonstrating periods of admission and discharge from various medical facilities. The respondent, however, challenged this contention, arguing that the applicant failed to provide a day-to-day account of the delay, spanning from 10

the date of his last admission to a medical facility up to the date on which the present application was filed. It is well established that, where illness is adequately proved, can constitute a sufficient ground for granting an extension of time to the applicant. [See: Granitech T. Company Limited vs Diamond Trust Bank Tanzania Limited & Others (Civil Application No.447/16 of 2021) [2023] TZCA 17470 (1 August 2023) TanzLII]. Upon a careful consideration of the medical chits annexed to the application, I do not consider it appropriate for this Court to assume a position of greater knowledge of the applicant's medical condition than that possessed by the applicant himself. This position has been aptly articulated and discussed in the case of John David Kashekya vs Attorney General (Civil Application No. 1 of 2012) [2013] TZCA 2346 (14 September 2013) TanzLII, where at page 8, the Court of Appeal underscored: - "I am so persuaded because sickness is a condition which is experienced by the persons who is sick. It is not a shared experience. Except for children who are not yet in a position to express their feelings, it is the sick person who can express his/her condition whether he/she has strength to move, work and do whatever kind o f work he is required to do. In this regard it is the applicant who says he was sick and he produced medical chits to show that he reported to a doctor for check up for one

year. There is no evidence from the respondent to show that after that period, his condition immediately became better and he was able to come to Court and pursue his case. Under such circumstances, I do not see reasons for doubting his health condition. I find the reason o f sickness given by the applicant to be sufficient reason for granting the application for extension o f time..." Learned counsel Mr. Mulokozi submitted that, owing to the nature of the applicant's illness, it could not be concluded that sickness was the sole cause of the delay. With respect, I am unable to agree to that submission. Upon perusal of the record, it is apparent that the Notice of Appeal was lodged by the applicant personally, the advocate engaged having been instructed solely for the purpose of drafting the said notice. In the circumstances, the responsibility to pursue the matter thereafter rested squarely upon the applicant, a responsibility which he was evidently unable to discharge due to his ill health. Moreover, it has not escaped my attention, that the applicant has consistently failed to appear before this Court, a circumstance which has been credibly explained by his continued illness. Taking all the foregoing into account, I am satisfied that the applicant has sufficiently accounted for the entire period of delay and has proved, on a balance of probabilities, that illness was the dominant cause thereof. In

light of this finding, I find it unnecessary to delve into the second ground relating to alleged illegality. In the upshot, the application is hereby allowed. The applicant is granted leave to file a Notice of Appeal within ten (20) days from the date hereof. I make no order as to costs. It is so ordered. Right of Appeal explained. DATED at BUKOBA on this 18th day of DECEMBER, 2025 Ruling delivered in chamber on this 18th day of December, 2025 in present of only Mr. Projestus Prosper, a learned advocate for the respondent. Rjnhh n f Annpal pynlainpH MUSA K. POMO JUDGE 18/12/2025 13