DAR ES SALAAM: SIMBA Mtoto Transport Company has lost the bid to challenge a judgment requiring them to pay 50m/- as compensation to Marambo Marambo, as administrator of the estate of passenger Shija Zakaria for loss of expectation of life and incidental.
This follows a decision of the High Court in Dar es Salaam to dismiss the application for extension of time within which to file an appeal lodged by the transportation company to oppose the decision given by the Kibaha Resident Magistrate’s Court more than 12 years ago.
“…it is my conclusion that the applicant has failed to demonstrate sufficient cause for the court to grant the extension. For that reason, I hereby dismiss the application,” Judge Awamu Mbagwa declared in the ruling delivered recently.
In his submission to support the application, Advocate Amir Mshana, who appeared for Simba Mtoto, the applicant, pointed out that the main ground for extension of time had elements of illegality, impropriety and irregularity in the decision sought to be impugned.
He forcefully argued that illegality alone is a sufficient ground for grant of extension of time.
While expounding on the illegality, Advocate Mshana pointed out that the trial court failed to frame issues, an ailment which is a fatal irregularity that warrants the extension of time.
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The counsel claimed that the judgment under attack did not accord with the requirements under Order XX Rule 4 of the Civil Procedure Code as there were no reasons given and the applicant was never summoned to appear in court on the date the judgment was delivered.
In his ruling, the judge noted that it was clear that the applicant was aware of the existence of Civil Case No. 2 of 2008, which was instituted in the Resident’s Magistrate’s Court of Kibaha.
According to him, it was also clear that the impugned decision was delivered by the trial court on May 11, 2011, whilst the present application was filed in court on June 12, 2023, that is 12 years later.
The judge noted further that on September 8, 2022, which is after the expiry of 11 years, the applicant filed a revision to challenge the judgment, but the same was struck out by the court for being incompetent.
“From the foregoing factual background, it is common cause that the present application has been preferred after more than eleven (11) years, and no reason let alone a good one has been provided for the delay,” he said.
The judge observed also that the applicant’s solo ground was the alleged illegality as stated under paragraphs of the affidavit.
However, he said, it has to be noted that illegality alone is not a decisive for granting of extension.
“The same must be taken into account along with other considerations such as diligence, the right of the decreeholder to enjoy his decree and length of delay,” the judge said.
He went through various decided cases on the matter and came to note that it is clear allegations of illegality do not ipso facto (the fact itself) warrant the extension of time as the applicant’s counsel wants this Court to believe.
Indeed, the judge said, sufficient ground is determined upon consideration of the obtaining circumstances in each particular case.
“Thus, having strenuously considered the instant application, I am inclined that the applicant is striving to use illegality to shield his ineptness. Admittedly, the inordinate delay of more than eleven (11) years has not been accounted for by the applicant,” he said.
Facts show that Marambo A. Marambo, as administrator of the estate of Shija Zakaria, deceased instituted, before the Court of the Resident Magistrate of Kibaha at Kibaha Civil Case No. 2 of 2008 against the applicant and Said Mwaluwal.
Marambo prayed for, among others, an order for payment of 50m/= as compensation for loss of expectation of life and incidental.
The suit was heard ex parte (in absence of the other party) following the applicants’ absence during the hearing of the suit. Consequently, the trial court entered judgment and decree in favour of Marambo.
After the lapse of eleven (11) years, the applicant emerged and lodged before the High Court Civil Application No. 391 of 2021, seeking an extension of time to file revision against the decision of the trial court.
However, on May 8, 2023, the High Court struck out the application for being incompetent. Still determined, on May 29, 2023 the applicant engaged Advocate Amir Mshana to institute the present application.
