Automated Summary
Key Facts
The applicant, Makame Ally Kiparago, sought an extension to appeal a 2011 land tribunal decision, claiming he received judgment copies on 2 May 2022 after requesting them on 23 February 2022. The respondent, Mery Maiko Shedafa, opposed the application, arguing there was no proof the copies were ready for collection by 20 April 2022 or that the applicant exercised due diligence. The court dismissed the application, finding insufficient evidence to justify the 35-day delay and noting the applicant introduced a new 'illegality' claim not in the original affidavit, which was disregarded.
Issues
- The court examined whether the applicant properly raised the issue of illegality in the tribunal's decision, noting that the ground was not specifically pleaded in the affidavit and was introduced by the applicant's counsel during submissions, leading the court to disregard it as an afterthought.
- The court considered if the applicant's 35-day delay in filing the appeal was justified, including reasons for the delay, the requirement to account for each day of delay, and whether the respondent would be prejudiced if the extension was granted.
Holdings
- The court disregarded the applicant's ground of illegality as it was not specifically pleaded in the supporting affidavit. The judge found that the alleged illegality was introduced as an afterthought during submissions and not featured in the original application, rendering it inadmissible under the rules of procedural fairness.
- The court dismissed the application for an extension of time to file an appeal, ruling that the applicant failed to account for the days of delay and did not provide sufficient proof of when the copies of the judgment were issued. The judge emphasized the absence of cogent evidence to support the claimed delay period and the requirement for the applicant to demonstrate good cause under the law.
Remedies
The court dismissed the applicant's request for an extension of time to file an appeal, concluding that the applicant failed to account for all days of delay and the ground of illegality was not properly pleaded.
Legal Principles
The court applied the factors outlined in Elius Mwakalinga v Domina Kagaruki for determining extensions of time: length of delay, reasons for delay, arguable grounds, and potential prejudice to the respondent. It emphasized that extensions under section 14 of the Law of Limitation Act require 'reasonable or sufficient cause' and that judicial discretion must be exercised according to reason and justice. The applicant failed to account for the delay period and did not demonstrate good cause.
Precedent Name
- Regional Manager TTCL v Othman Mbarouk & 2 others
- Ngao Gowin Losera v Julius Mwarabu
- Vodacom Foundation v Commissioner General (TRA)
- Elius Mwakalinga v Domina Kagaruki & others
- Registered Trustees of the Marian Faith Healing Centre @ Wanamaombi v the Registered Trustees of the Catholic Church Sumbawanga Diocese
- Regional Manager, TANROADS Kagera v Ruaha Concrete Company Ltd
- Tanga Cement Company Ltd v Jumanne D. Massanga and another
- Sofia Bhoke Maryogo v Richard Kisika Mugendi
- Mbogo v Shah
Cited Statute
- Law of Limitation Act, Cap. 89
- Land Disputes Courts Act, Cap. 216 [R.E 2019]
Judge Name
A.Z. MGEYEKWA
Passage Text
- Concerning the ground of illegality... the ground of illegality is raised from the bar. Thus, Mr. Kitare submission is an afterthought and the same is disregarded.
- Consequently, I hereby dismiss this application. No order as to costs. Order accordingly.
- In my view, since there is no any cogent proof that the copies were issued on 2nd May, 2022 then the applicant had to account for the days of delay 5th April, 2022. Failure to account for the days of delay means his ground of delay cannot stand.