IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM

f CO RAM: NDIKA. J.A.. KEREFU. J.A.. and NGWEMBE. J.A.^

CIVIL APPEAL NO. 177 OF 2021

SHABANI MOHAMED MWANAMBIGU........................... APPELLANT

VERSUS
ALLY BWANA ALLY......................................................... RESPONDENT
(Appeal from the Decision of the High Court of Tanzania,
Land Division at Dar es Salaam)
fMango, J.)

dated the 12thday of March, 2021

in
Misc. Land Application No. 707 of 2019

JUDGMENT OF THE COURT

9th & 16th July, 2024

KEREFU. 3.A.:

This appeal arises from the decision of the High Court of Tanzania,

Land Division at Dar es Salaam in respect of Misc. Land Application No.

707 of 2019 (Mango, J.) dated 12th March, 2021. In that application, the

appellant applied for extension of time within which to lodge an appeal

against the decision of the District Land and Housing Tribunal (the

DLHT) for Kilosa in Land Appeal No. 57 of 2014 after failure to do so

within the prescribed period under the law. The said application was

dismissed by the High Court for failure by the applicant to advance

sufficient cause for the delay, hence this appeal.

 As per the record of the appeal, this matter originates from

Mabwegere Ward Tribunal in Land Case No. 7 of 2013, where the

appellant unsuccessfully sued the respondent over the ownership of a

parcel of land measuring 11 acres situated at Mabwegere Village within

Kilosa District, claiming to be declared a lawful owner of the same.

Aggrieved, the appellant unsuccessfully preferred an appeal to the

DLHT vide Land Appeal No. 57 of 2014. Subsequently, in 2016, the

appellant together with one Daudi Yahaya, who is not a party to this

appeal, trespassed on the disputed land the actions which forced the

respondent to lodge Criminal Case No. 282 of 2016 in the Primary Court

of Mamba within Kilosa District. After a full trial, the trial court was

convinced that the case against the appellant and his colleague was

proved to the required standard. Thus, the appellant and his colleague

were found guilty, convicted and sentenced to six months imprisonment.

Having completed to serve his sentence and still dissatisfied with

the decision of the DLHT, but being out of the time prescribed under

section 38 (1) of the Land Disputes Courts Act, Cap. 216 (the Land

Disputes Act) to appeal, the appellant lodged an application for

extension of time in the High Court vide Misc. Land Application No. 707

of 2019. Before the High Court, the appellant submitted three reasons

for the delay one; that, he was belatedly supplied with the certified
copy of the DLHT's proceedings; two, that, he was serving a custodial

sentence indicated above; and three, his ill health which caused him to

be admitted at the Kilosa District Hospital from 9th to 13th April, 2018.

The respondent resisted the application as he contended that the

appellant failed to demonstrate good cause for extension of time. He

added that, the appellant ought to have acted diligently and timely in

pursuing the matter. He specifically, referred to the appellant's letter

requesting for the certified copy of the DLHT's documents that it was

written on 26th October, 2016 when the time limit to file an appeal had

already lapsed. On the second reason, the respondent argued that, the

appellant was sentenced to six months imprisonment in 2017 after the

time to appeal to the High Court had already lapsed. He contended that,

since, the decision of the DLHT sought to be challenged was issued on

14th July, 2016 and the appellant was sentenced on 18th January, 2017

and released from the prison on 17th May, 2017 the said reason is

unfounded. On the reason of his ill health, the respondent contended

that, the appellant became sick on 9th to 13th April, 2018 after a lapse of

almost three years from the date of impugned decision. The respondent

contended further that the appellant had failed to account for each day

of delay as required by the law. Thus, the respondent prayed for the

appellant's application to be dismissed with costs.

 In its decision, the learned High Court Judge, having been satisfied

that the three reasons advanced by the appellant did not constitute

good cause warranting extension of time, dismissed the application with

costs. Aggrieved, the appellant lodged the current appeal. In the

memorandum of appeal, the appellant has preferred two (2) grounds

which boil down to one main ground that, "the learned High Court Judge

erred in taw and fact for failure to find that the appellant has advanced

good cause for the delay as required by the law.'

At the hearing of this appeal, both, the appellant and the

respondent appeared in person.

When given the opportunity to amplify on his grounds of appeal,

the appellant adopted the same with no more and urged the Court to

consider them and allow his appeal.

On the other side, the respondent, at the outset, declared his

stance of opposing the appeal and intimated that the learned High Court

Judge was correct to dismiss the application on account of failure by the

applicant to advance good cause for the delay and account for the delay

of each day. He thus implored us to dismiss the appeal with costs for

lack of merit.
 Rejoining, the appellant did not have much to say other than

insisting for his appeal to be allowed.

On our part, having examined the record of the appeal and

considered the oral submissions made by the parties, we are settled

that, the issue for our determination is whether the appellant had

advanced good cause to enable the High Court to exercise its discretion

to extend time as prayed in the chamber summons.

Before embarking on the determination of the said issue, we wish

to state the general principle that an appellate court cannot interfere

with the exercise of the discretion of the lower court unless it is satisfied

that the decision concerned was made on a wrong principle or that

certain factors were not taken into account. We find it apt at this point

to refer to Mbogo and Another v. Shah [1968] 1 EA 93, a decision of

theerstwhile Court of Appeal for East Africa, which has been cited and

applied in numerous decisions of this Court. The relevant passage is as

per Sir. Clement de Lestang VP at page 94 thus:

"I think it is well settled that this Court will not

interfere with the exercise o f its discretion by an
inferior court unless it is satisfied that the
decision is clearly wrong, because it has
misdirected itself or because it has acted on
matters on which it should not have acted or
 because it has failed to take into consideration
matters which it should have taken into
consideration and in doing so arrived at a wrong
conclusion. "[Emphasis added]

The above principle has been restated in numerous decisions of the

Court. See for instance, Credo Siwale v. Republic, Criminal Appeal

No. 417 of 2013 [2014] TZCA 184: [22 October 2014: TanzLII] and

Pangea Minerals Limited v. Gwandu Majali, Civil Appeal No. 504 of

2020 [2021] TZCA 414: [26 August 2021: TanzLII]. Therefore, in

determining this appeal, we shall be guided by the same, as it is equally

applicable to the instant appeal which is also questioning a High Court's

exercise of its discretion.

Having perused the record of the appeal, we must state at the

outset that, we do not see any justification to fault the decision of the

learned High Court Judge. We shall demonstrate.

It is settled law that the court can only grant extension of time, if

the appellant shows sufficient cause. In Shanti v. Hindocha & Others

[1973] E.A. 207, the Erstwhile Court of Appeal for East Africa considered

similar phrase, "sufficient cause" and defined it to mean the cause which

is convincingly beyond the applicant's control, that is to say:

 ". . the more persuasive reason . . . that he can
show is that the delay has not been caused or
contributed by dilatory conduct on his part. But
that is not the only reason."

Some of the factors which may be taken into account in considering

whether or not the applicant has shown good cause were stated by the

Court in the case of Lyamuya Construction Company Limited v.

Board of Registered Trustees of Young Women Christian

Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA

4: [3 October 2011: TanzLII], where the Court defined what was meant

by sufficient cause and developed factors to be looked at when

considering good cause for extension of time, that: (i) the applicant

must account for all the period of delay; (ii) the delay should not be

inordinate; (iii) the applicant must show diligence, and not apathy,

negligence or sloppiness in the prosecution of the action that he intends

to take; and (iv) if the Court feels that there are other reasons, such as

existence of a point of law of sufficient important, such as the illegality

of the decision sought to be challenged.

In the instant appeal, it is on record that, before the High Court,

the appellant advanced three reasons for the delay one; that, he was

belatedly supplied with the certified copy of the DLHT's proceedings;

two, that, he was serving a custodial sentence indicated above; and

three, that, he was admitted at the Kilosa District Hospital from 9th to

13th April, 2018.

Starting with the first reason for the delay, we find it apposite to

state that, pursuant to section 38 (1) of the Land Disputes Act, an

appeal to the High Court from DLHT on matters originated from the

Ward Tribunal must be filed within sixty (60) days from the date of the

decision sought to be challenged. For clarity, the said section provides

that:

"38 (1) Any party who is aggrieved by a decision

or order o f the District Land and Housing
Tribunal in exercise o f its appellate or
revisionai jurisdiction, may within sixty
days after the date o f the decision
or order, appeal to the High
Court,..provided that the High Court
may for good and sufficient cause extend
the time for filing an appeal either before
or after such period o f sixty days has

expired.
(2) Every appeal to the High Court shall be
by way o f petition and shall be filed in
the District Land and Housing Tribunal
from the decision or order o f which the
appeal is brought

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 (3) Upon receipt of a petition under this
section, the District Land and
Housing Tribunal shall within
fourteen days dispatch the petition
together with therecord o f the
proceedings in theWard Tribunal
and the District Land and Housing
Tribunal to the High Court."
[Emphasis added].

It is common ground that the decision of the DLHT sought to be

challenged was delivered on 14th July, 2016. It is also on record that,

the appellant's letter requesting for the certified copy of the DLHT's

proceedings for appeal purposes was written on 26th October, 2016 after

lapse of almost 102 days, when the time limit to file an appeal had

already lapsed. Thus, the appellant's initial appeal which was lodged on

17th July, 2017 was struck out for being time barred. Hence, the

appellant lodged an application for extension of time, subject of this

appeal, which was filed in the High Court on 16th December, 2019,

again, after a lapse of more than two years from the date of striking out

of his first appeal.

We are mindful of the fact that, in his affidavit in support of the

said application, the appellant attributed his delay with the delay in

obtaining the certified copy of the DLHT's proceedings. Having

considered the said reason, the learned High Court Judge, correctly in

our view, referred to section 38 (2) and (3) of Land Disputes Act

reproduced above and reasoned at page 12 of the record of appeal that:

"As to the relevance o f such delay in obtaining a

copy o f judgment, the law section 38 (2) o f the
Land Disputes Act indicates that copy o f
judgment is not a mandatory document to be
attached to the petition o f appeal...the duty to
forward record and decisions o f the two tribunals
is entrusted to the District Land Tribunal under
section 38 (3) o f Cap. 216. The applicant was
required to file only a petition o f appeal before
the District Land and Housing Tribunal for Kilosa.
Thus,; the excuse o f waiting for copies o f
judgment is not relevant to this application."

However, the learned High Court Judge went on to state that:

"Even if it will be considered necessary for the

applicant to have the copy o f judgment in
formulation o f his appealsection 19 (2) o f the
Law o f Limitation Act, [Cap. 89 R.E. 2019]
excludes the time spent waiting for necessary
documents for appeal in computing the
prescribed time limit. For that reason, 60 days'
time limit, in the matter at hand, started to run
from l4 h October, 2016 to l4 h December, 2016.
The applicant did not account for delay from I4 h
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 December, 2016 to 17th January. Conviction in
the Criminal Case was issued on 18th January,
2017 and there was no evidence that he was
attending sessions for criminal case every day."

Having regard to the above reproduced reasons and finding of the

learned Judge, we find the complaints by the appellant unfounded.

We equally find the other reasons for the delay advanced by the

appellant before the High Court to be irrelevant and couldnot have

assisted him and or amounted to sufficient cause for extensionof time.

It is on record at page 40 of the record of the appeal that the appellant

was sentenced to six months imprisonment in 2017 when the time limit

to appeal to the High Court had already lapsed. Likewise, according to

the medical report attached to paragraph 6 of the appellant's affidavit in

support of the application, he became sick and admitted at Kilosa

District Hospital on 9th to 13th April, 2018, again, after a lapse of almost

three years from the date of impugned decision. In addition, and as

correctly found by the learned High Court Judge, in his affidavit in

support of the application, the appellant did not account for the entire

period of the delay as required by the law. As intimated above, in an

application for extension of time, the applicant is required to account for

the delay of each day. Indeed, the Court has reiterated this position in

numerous cases - see for instance the cases of Bushiri Hassan v.

ii
Latifa Lukio Mashayo, Civil Application No. 3 of 2007 and Sebastian

Ndaula v. Grace Rwamafa, Civil Application No. 04 of 2014 (both

unreported).

Since in the instant appeal, the appellant failed to account for the

delay of each day in lodging his appeal, the High Court could not have

exercised its discretion to grant extension of time sought. In Michael

Lessani Kweka v. John Eliafye [1997] T. L. R.152, the Court

emphasized that: "The court has power to grant an extension o f time if

sufficient cause has been shown for doing so."

Therefore, to be entitled to an extension of time, the appellant

was required to avail before the High Court sufficient material to show

not only that he took actions before and after expiry of time to lodge the

appeal, but also that he acted promptly and diligently to take the actions

in order to convince the court to exercise its discretion to grant

extension of time.

In totality and having considered the appellant's reasons advanced

before the High Court, we agree with the respondent that the learned

Judge properly directed herself to the relevant facts of the case and

correctly applied principles of the law in arriving at her decision that

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good cause was not shown to justify the enlargement of time that had

been prayed for.

In the event, we are settled that this appeal is devoid of merit,

and we hereby dismiss it with costs.

DATED at DAR ES SALAAM this 12th day of July, 2024.

G. A.M. NDIKA
JUSTICE OF APPEAL

R. J. KEREFU
JUSTICE OF APPEAL

P. J. NGWEMBE
JUSTICE OF APPEAL

The Judgment delivered this 16th day of July, 2024 in the presence of

the Appellant in person through video link from Kilosa District Court and

in the absence of the Respondent is hereby certified as a true copy of

the original.

t.

A. S. ChjllGULU
DEPUTY REGISTRAR
COURT OF APPEAL

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