Civil Reference No. 7 of 2004
The applicant, Selemani Kasembe Tambala, was employed as a Prison Officer III in 1983, rising to Corporal (1998) and Sergeant (2005), before being terminated from employment in 2009. Dissatisfied, he pursued internal appeals to the Commissioner General of Prisons and sought assistance from the Commissioner for Human Rights and Good Governance, but received little relief. In 2015 the first respondent advised him to pursue legal remedies, and he subsequently filed about nine applications in the High Court seeking judicial review remedies (certiorari and mandamus) against his termination, all unsuccessful. His last application, Miscellaneous Civil Application No. 12 of 2020, sought leave to file for certiorari to quash the first respondent's decision. The High Court (Feleshi, JK) found this application sought orders similar to two earlier applications and, deeming it incompetent and an abuse of process, struck it out and permanently barred the applicant from filing further related applications. Aggrieved, the applicant sought to appeal but filed his notice of appeal three days late (18th May 2020 instead of by 15th May 2020) and did not institute the appeal within the prescribed 60-day period, leading to this application for extension of time under Rule 10 of the Court of Appeal Rules.
Whether the applicant demonstrated 'good cause' under Rule 10 of the Tanzania Court of Appeal Rules to justify extension of time to lodge his appeal out of time, specifically: (i) whether the impugned High Court decision was tainted with illegality sufficient to warrant extension of time; and (ii) whether the applicant sufficiently accounted for the delay in instituting the appeal, including his claim that the High Court Registrar failed to supply him with necessary documents.
The applicant, appearing in person, relied on his notice of motion, supporting affidavit and written submissions, contending that his right to justice was denied by the High Court judge and that the decision restraining him from filing further related applications was illegal because it barred him from being heard. He also argued that his delay in filing the appeal was caused by the Registrar's refusal to supply him with necessary documents and a certificate of delay. The respondents, through State Attorney Ms. Lupondo, opposed the application, arguing that the applicant failed to account for every day of delay: the notice of appeal was filed three days late without explanation, and the appeal itself was not instituted within 60 days of the notice as required by Rule 90(1) of the Rules, nor was the delay from filing the notice to lodging this application (14th September 2020) explained. Citing Finca (T) Limited and Another v. Boniface Mwalukisa, she submitted that even a single day's delay must be explained. On the documents issue, she argued that the applicant's own affidavit (paragraph 16) showed he had already been supplied with the proceedings and order before requesting them again, making his claim of Registrar's refusal unjustified and indicative of negligence. On illegality, relying on Hamisi Mohamed v. Mtumwa Moshi, Lyamuya Construction Company Ltd v. Board of Registered Trustees of YWCA, and Ngao Godwin v. Julius Mwarabu, she argued that illegality must be apparent on the face of the record to justify extension of time, and that the alleged illegality here was not apparent since the applicant had been given the right to be heard and had simply failed to timeously pursue his judicial review applications, resulting in the restraining order after repeated abuse of process.
The Court (Levira, J.A.) dismissed the application, holding that the applicant failed to establish good cause for extension of time. On illegality, the Court found that the High Court's order was not illegal; the applicant himself acknowledged in his affidavit that his multiple applications had inherent problems, and dissatisfaction with a decision does not render it illegal. No illegality was apparent on the face of the record. On the delay ground, the Court held that the proviso to Rule 90(1) of the Rules, which excludes time taken by the Registrar to prepare and supply proceedings from the computation of the 60-day period, applies only where an applicant who timely requested documents was not supplied with them; it does not entitle an applicant to be resupplied with documents already furnished. Since the applicant had been supplied with the necessary documents (proceedings and order) as early as 21st April 2020, well before the prescribed time, his claim that the Registrar's refusal to resupply documents caused the delay was invalid. The Court further noted the applicant filed the present application two months before the prescribed deadline period had even expired for other purposes, but still failed to account for the overall delay in instituting the appeal, in line with the settled principle that every day of delay must be explained (citing Yazid Kassim Mbakileki v. CRDB and Others, Finca (T) Limited and Another, and Joseph Paul Kyanka Njau & Another). Accordingly, the application was dismissed with no order as to costs.
This ruling reaffirms established principles governing applications for extension of time under Rule 10 of the Tanzania Court of Appeal Rules: (1) an applicant must account for every day of delay, however short, in seeking to lodge an appeal out of time; (2) an allegation of illegality as a ground for extension of time must be apparent on the face of the record and not require a long-drawn argument to establish, and mere dissatisfaction with a court's decision does not amount to illegality; and (3) the proviso to Rule 90(1) excluding time used by the Registrar in preparing and delivering copies of proceedings applies only to protect diligent applicants who timely requested documents but were not supplied, and cannot be invoked by an applicant who was already supplied with the requisite documents but later sought them again. The case illustrates the Court's strict approach to extension of time applications and reinforces that procedural diligence and timely action are prerequisites for invoking the Court's discretionary powers under Rule 10.
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