Mr. Mfalila, learned counsel for the respondent, at first was under the impression
that the application is for leave to appeal to this Court against the decision of Massati, J. refusing to grant leave to appeal against
the decision of Bubeshi, J (Rtd) ? (paragraph 2 of the counter affidavit). After some oral clarification by the applicantfs
counsel that the applicant is seeking leave to be allowed to file his application for leave out of time, he offered no resistance.
But he was of the view that, since the applicant had applied for the necessary documents in time, and the Registrar of the High Court
delayed to supply him with the same, he should have applied to the Registrar of the High Court to issue him with a certificate for
excluding the time the Registrar took to supply him with the same, as provided for under Rule 83 of the Court Rules, 1979. In that
respect, he said, the application would be in time, and there would be no need for applying for extension of time. In reply Mr. Msuya,
learned counsel, submitted that Rule 83 applies to appeals only and not to application as well.
As observed earlier, this application is for extension of time within which to apply
for leave to appeal to this Court. Although basically it has not seriously been controverted by the respondent,
yet this does not preclude the Court from considering whether the applicant has shown sufficient reasons for his delay, and whether
the intended appeal has arguable points.
I have carefully considered the applicantfs affidavit together with the annextures thereat. The High Court (Massati, J.) ruling
which refused to grant leave to the applicant to appeal to this Court against Bubeshifs decision was delivered on 26th March, 2004 (Annextures MSK ? 6 (i) and (ii). The applicant applied for copies of the ruling and order on the same day (MSK ? 7).
He was supplied with the same on 14th April, 2004 and filed this application on the same day (Annexture MSK ? 8). Under the circumstances I am satisfied that the applicant
was diligent and he did all that was within his powers, and that the delay was beyond his control. The delay was with sufficient
reason.
On whether the intended appeal has an arguable point, the applicant has listed down
the following points:-
a)
Whether an appeal is an alternative of the powers vested onto the High Court under Section 44 (1) (a) of the Magistrates Courts Act,
1984 in which the High Court is empowered to exercise supervisory powers over subordinate courts
b)
Whether under the circumstances of this case the applicant was required to prefer an appeal and not invoke the supervisory powers
of the High Court as a requirement of the law
c)
Whether the order sought to be revised by the High Court had been overtaken by events and an appeal against the same is merely an
academic exercise.
Looking at their face value, they appear to be arguable. May be they will be more clear upon submission at the hearing.
On whether Rule 83 of the Court Rules 1979 applies also in respect of applications of this nature, I think the answer is in the negative.
In my view, Rule 83 is applicable to appeals only.
It is upon the above reasons that I allow the application. Leave is granted to the
applicant to appeal to this Court against the decision of Bubeshi, J. (as she then was) dated 8th February, 2002. According to the circumstances of the case, it is desirable that each party should bear his costs. It is so ordered.
DATED at DAR ES SALAAM this 4th day of February, 2005.
.RTF of original document