Application Should Be Made in The High Court First, Then in The Court of Appeal As A Second Bite, MAENDELEO KIRIBA

IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
CIVIL APPLICATION NO. 269/08 OF 2021
MAENDELEO KIRIBA.............................................................. APPLICANT
VERSUS
1. TABU MAJIRA SORI 1

2. PATRICE KICHOMORI MAKANGA p ............................... RESPONDENTS
(Application for extension of time to file Application for leave to appeal

to the Court of Appeal out of time, against the Ruling of the
High Court of Tanzania at Mwanza)
(Rumanvika. 3.^
dated the 31th day of March, 2021

in
Application No. 104 of 2020
RULING
7th & 17th February, 2022.
MAKUNGU. J.A.:
Before me is a notice of motion dated 28th April, 2021, filed by
the applicant on 3rd May, 2021. The Court is being moved under Rule
10 of the Tanzania Court of Appeal Rules, 2009 as amended (the
Rules). The applicant is seeking extension of time within which to file
an application for leave to the Court out of time against the ruling of
the High Court of Tanzania at Mwanza (Hon. S. M. Rumanyika, J. as he
then was) in Misc. Land Application No. 104 of 2020. The notice of
motion is supported by an affidavit sworn by the applicant.
i
The back ground of this matter is that, the parties had a dispute
over a piece of land. The respondent had successfully sued the
applicant at Nyankwanga Ward Tribunal for recovery of the piece of
land measuring 20 acres. The applicant was aggrieved by the order of
the trial Ward Tribunal and hence he appealed to the District Land and
Housing Tribunal at Musoma (the DLHT) in Land Appeal No. 135 of
2015. The applicant lost at the DLHT and hence lodged appeal No.
100 of 2017 before the High Court of Tanzania at Mwanza. The
applicant lost his appeal before the High Court just as it was before the
DLHT.
After the High Court had delivered its judgment, the applicant
preferred an application for leave in Misc. application No. 151 of 2019.
The said application was dismissed for non-appearance of the
applicant. The applicant filed Misc. Application No. 05 of 2020 to set
aside the dismissal order in respect of application No. 151 of 2019 but
the same was dismissed as well for lack of merits. Following that
dismissal the applicant filed Misc. application No. 104 of 2020 for
leave to appeal to the Court against the dismissal order in respect of
Misc. Application No. 05 of 2020, but like previous applications,
application No. 104 of 2020 was dismissed for being time barred. The
2
applicant has now come to the Court seeking for extension of time to
apply for leave.
Consequent to the foregoing, the respondents filed a notice of
preliminary objection on 6th July, 2021 to the effect that the "Court has
no jurisdiction to entertain the application because the jurisdiction to
extend time for making an application for leave to appeal is within the
domain o f the High Court."
When the application was called on for hearing on 7th February,
2022 the applicant appeared in person without legal representation
and the same to the respondents.
As the practice of the Court demands, I had to dispose of the
preliminary objection first. Thus the 2nd respondent argued the
preliminary objection to the effect that, this Court has no jurisdiction to
grant this application. He told me that this application ought to be
filed in the High Court first before coming to this Court. To fortify his
contention, he cited the decision of this Court in Josephine A. Kalalu
v. Issack Michael Mallya, Civil Reference No. 1 of 2010 C.A at
Mwanza (unreported). For that reason, he prayed that this application
be struck out with costs.
3
The 1st respondent concurred with the submission by his co
respondent.
In response to the foregoing submission, the applicant had
nothing useful to submit on that legal point. He simply told the Court
that he was a layperson who did not know the proper Court's
procedure. He thus put trust in the Court to do justice as
circumstances dictate.
I have carefully considered the arguments by the respondents in
the light of the record of the application. Having so done, I think I am
prepared to swim their current. In joining hands with the respondents
I shall start my determination by reproducing the provision of section
11(1) of the Appellate Jurisdiction Act (R.E. 2002) (Cap 141)
(henceforth the "AJA"). Section 11(1) of AJA reads:
” (1) subject to subsection (2), the High Court or,

where an appeal lies from a subordinate Court
concerned, may extend the time for giving notice o f
intention to appeal from a judgment o f the High Court
or o f the subordinate Court concerned, for making an
application for leave to appeal or for a certificate that
the case is a fit case for appeal\ notwithstanding that
the time for gving the notice or making the application
has already expired."
The above section actually confers on the High Court Jurisdiction
to extend time for giving notice of intention to appeal, making an
application for leave to appeal or for a certificate on a point of law.
The AJA also confers, in section 5(1) (c), concurrent jurisdiction on
both this Court and the High Court, power to grant leave to appeal to
this Court.
All the same, Rule 47 of the Rules provides that "whenever an
application may be made either to the Court or to the High Court, it
shall in the first instance be made to the High C o u rt...Established law
is that if a party fails in the bid to get an order of such extension of
time from the High Court, a second bite in this Court was permissible
under Rule 10 of the Rules and thereafter an aggrieved party would
have proceeded by way of a reference under Rule 62. Such
application, however, had to be made within 14 days of the decision of
the High Court.
In this application, as the record shows, no such application has
been filed by the applicant before the High Court.
5
I have gone through the cited case of Josephine A. Kalalu
(supra) and found it relevant to this application. In the application at
hand, as submitted by the respondents and to my mind rightly so, this
Court cannot legally entertain and hear this application before the
same is heard by the High Court.
In the event, I sustain the preliminary objection and strike out
the incompetent application with costs to the respondents.
DATED at MWANZA this 16thday of February, 2022.
0. 0. MAKUNGU
JUSTICE OF APPEAL
The Ruling delivered this 17th day of February, 2022 in the
presence of applicant and the 2nd respondent both in person and
absence of 1st respondent is hereby certified as true copy of the
original.

Application Should Be Made in The High Court First, Then in The Court of Appeal As A Second Bite, MAENDELEO KIRIBA

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IN THE COURT OF APPEAL OF TANZANIA

CIVIL APPLICATION NO. 269/08 OF 2021

MAENDELEO KIRIBA.............................................................. APPLICANT

1. TABU MAJIRA SORI 1

(Application for extension of time to file Application for leave to appeal

dated the 31th day of March, 2021

Before me is a notice of motion dated 28th April, 2021, filed by

10 of the Tanzania Court of Appeal Rules, 2009 as amended (the

Rules). The applicant is seeking extension of time within which to file

the High Court of Tanzania at Mwanza (Hon. S. M. Rumanyika, J. as he

motion is supported by an affidavit sworn by the applicant.

over a piece of land. The respondent had successfully sued the

applicant at Nyankwanga Ward Tribunal for recovery of the piece of

land measuring 20 acres. The applicant was aggrieved by the order of

Housing Tribunal at Musoma (the DLHT) in Land Appeal No. 135 of

100 of 2017 before the High Court of Tanzania at Mwanza. The

preferred an application for leave in Misc. application No. 151 of 2019.

The said application was dismissed for non-appearance of the

applicant. The applicant filed Misc. Application No. 05 of 2020 to set

leave to appeal to the Court against the dismissal order in respect of

Misc. Application No. 05 of 2020, but like previous applications,

apply for leave.

Consequent to the foregoing, the respondents filed a notice of

no jurisdiction to entertain the application because the jurisdiction to

domain o f the High Court."

When the application was called on for hearing on 7th February,

2022 the applicant appeared in person without legal representation

and the same to the respondents.

As the practice of the Court demands, I had to dispose of the

preliminary objection first. Thus the 2nd respondent argued the

preliminary objection to the effect that, this Court has no jurisdiction to

grant this application. He told me that this application ought to be

contention, he cited the decision of this Court in Josephine A. Kalalu

v. Issack Michael Mallya, Civil Reference No. 1 of 2010 C.A at

Mwanza (unreported). For that reason, he prayed that this application

be struck out with costs.

In response to the foregoing submission, the applicant had

procedure. He thus put trust in the Court to do justice as

I have carefully considered the arguments by the respondents in

the light of the record of the application. Having so done, I think I am

prepared to swim their current. In joining hands with the respondents

I shall start my determination by reproducing the provision of section

11(1) of the Appellate Jurisdiction Act (R.E. 2002) (Cap 141)

(henceforth the "AJA"). Section 11(1) of AJA reads:

” (1) subject to subsection (2), the High Court or,

The above section actually confers on the High Court Jurisdiction

to extend time for giving notice of intention to appeal, making an

application for leave to appeal or for a certificate on a point of law.

The AJA also confers, in section 5(1) (c), concurrent jurisdiction on

All the same, Rule 47 of the Rules provides that "whenever an

application may be made either to the Court or to the High Court, it

shall in the first instance be made to the High C o u rt...Established law

is that if a party fails in the bid to get an order of such extension of

under Rule 10 of the Rules and thereafter an aggrieved party would

have proceeded by way of a reference under Rule 62. Such

application, however, had to be made within 14 days of the decision of

the High Court.

In this application, as the record shows, no such application has

been filed by the applicant before the High Court.