Automated Summary
Key Facts
George Timothy Mwaikusa applied for extension of time to appeal to the Court of Appeal against the High Court's judgment dated 19th September, 2019 in Revision No. 510 of 2018. He was terminated from National Microfinance Bank PLC on 6th October, 2016 for misconduct, won at the Commission for Mediation and Arbitration, but lost at the High Court. He filed notice of appeal on 2nd October 2019 but failed to lodge memorandum of appeal within 60 days, claiming delay due to wife's death on 5th November 2019, burial services, sickness, and CMA proceedings unavailability. The application was filed on 17th February, 2020, resulting in approximately 67 days delay from the last filing date of 1st December, 2019. The Court dismissed the application as the alleged illegality grounds were not apparent on the face of the record and he failed to account for each day of the delay.
Issues
- The court examined whether the applicant's explanations for the delay (wife's death and burial services, sickness, unavailability of CMA proceedings) were sufficient, noting that the applicant failed to account for specific periods of delay including 18 days from 20 December 2019 to 7 January 2020 and 12 days from 5 February 2020 to 17 February 2020 when he filed the present application.
- The court assessed whether the applicant's claims of illegality regarding the termination reason and disciplinary procedure fairness met the threshold of being apparent on the face of the record, ultimately determining these were ordinary grounds of appeal rather than sufficient for extension of time to appeal.
- The court needed to determine if the applicant (George Timothy Mwaikusa) demonstrated sufficient cause for granting an extension of time to file an appeal to the Court of Appeal beyond the prescribed 60-day period for lodging the memorandum of appeal, considering the applicant had delayed filing for approximately 67 days after the notice of appeal was lodged.
Holdings
The High Court dismissed the applicant's application for extension of time to appeal to the Court of Appeal out of time. The court found the applicant failed to account for each day of delay as required by law, and the alleged illegality regarding termination fairness was not apparent on the face of record. The court held that the applicant's grounds were normal grounds of appeal rather than sufficient cause for extension of time, therefore the application was dismissed for want of merits with each party bearing their own costs.
Remedies
- The court dismissed the applicant's application for extension of time to appeal to the Court of Appeal out of time prescribed by law for want of merits.
- Each party to the suit is to take care of their own costs of the suit.
Legal Principles
- The Court has discretion to grant extension of time to appeal upon good cause shown, with the overriding consideration being that there must be sufficient cause for the delay. Good cause is a relative concept dependent on the party seeking extension providing relevant material, and must be determined by reference to all circumstances of the particular case. The applicant is required to account for every day of delay.
- A claim of illegality in the challenged decision constitutes sufficient reason for extension of time under the Court of Appeal Rules, regardless of whether a reasonable explanation has been given for the delay. However, the respective illegality must be sufficient in content and apparent on the face of record, not requiring discovery through long drawn argument or process.
Precedent Name
- Ngao Godwin Losero V. Julius Mwarabu
- Lyamuya Construction Company Ltd V. Board of Registered Trustees of Young Women's Christian Association of Tanzania
- Bushiri Hassan vs. Latifa Lukio Mashayo
- Oswald Masatu Mwizarubi V. Tanzania Processing Ltd
- Tanesco V. Mufungo Leornard Majura and 15 Others
- Dar Es Salaam City Council v. Jayantilal P. Rajani
- Said Nassor Zahor and Others vs. Nassor Zahor Abdallah El Nabahany and Another
- VIP Engineering and Marketing Limited and Two Others v. Citibank Tanzania Limited
- Stephen B.K. Mhauka V. The District Executive Director Morogoro District Council and two Others
- Praygod Mbaga V. Government of Kenya Criminal Investigation Department and Another
- Tanga Cement Company V. Jumanne D. Masangwa and Another
Cited Statute
Court of Appeal Rules
Judge Name
A. E. MWIPOPO, J.
Passage Text
- However, the respective illegality has to be sufficient in content and apparent on the face of record. The respective points of illegality are normal grounds of appeal which are subject to long drawn argument or process. The Applicant is challenging the reasoning and the decision of the Court which found that the reason and procedure for termination was fair. The alleged illegality in the trial court decision is not apparent on the face of it. Thus, it is not a good cause for the Court to grant the extension of time.
- In the event, I find that the Applicants have failed to demonstrate a good cause for the Court to extend time to file appeal in the Court of Appeal out of time.
- In the present case the Applicant did not account for the each day delayed but he provided general explanation regarding to the respective delay that he was taking care of his late wife burial service and rituals, he was sick and he was making follow up of the CMA proceedings. However, he did not explain the delay for 18 days from 20th December, 2019 to 7th January, 2020 and the delay for 12 days from 5th February, 2020 to 17th February, 2020 when he filed the present application.