On 27.2.2004, that application was dismissed for want of merit. Sixteen days later, that is, on 15.3.2004, the applicant applied for
the same orders in this Court, apparently under Rule 43 of the Court Rules, 1979. But under Rule 43 (b) that application was required
to be filed within fourteen days from the date when the High Court had refused that application. Thus the applicant was late by two
days. On 10.12.2004 that application was struck out by a single Judge of this Court, Mroso, J.A., not for that reason of being late
but for failure to cite the relevant provisions of law under which the application was made. On 23.12.2004 the applicant filed the
present application praying for the same reliefs.
Unfortunately the applicant did not state specifically in his affidavit the reason(s)
for the delay from 27.2.2004 when his application was refused by the High Court till on 23.12.2004 when he filed this application.
On 13.7.2005 the applicant applied for and was granted leave to file a supplementary
affidavit stating specifically the reason for the delay from 27.2.2004 to 23.12.2004. He was granted seven days within which to file
the same. That leave was granted under Rule 46 (2) of the Court Rules, 1979. But for unexplained reason the applicant filed the supplementary
affidavit within eight days. He was late by one day. He was required to obtain leave of the court to file it out of time. He had
neither applied for nor was granted the said leave. So, on 28.7.2005 the said supplementary affidavit was expunged from the record
whereby the applicant, through his advocate Mr. Ukwonga, intimated that he would make a formal application for extension of time
within which to file it. Later he applied for the same orally. He advanced two grounds for the delay. One, that he was pursuing the
order by Mroso, J.A. dated 10.12.2004. Two, that he miscalculated the days whereby he thought seven days from 13.7.2005 would expire
on 21.7.2005. Mr. Mchome, learned counsel for the respondent, contended that those reasons are not sufficient to justify the delay.
I have carefully considered the arguments and submissions by learned counsel for
both parties. There is nothing suggesting that the applicant was pursuing a copy of the order by Mroso, J.A. dated 10.12.2004. I
say so because there is no letter to the Registrar asking to be supplied with the same. Mr. Ukwonga has contended that, since the applicant was a party in the case before Mroso, J.A., (Civil Application No. 31 of 2004)
he was entitled to be supplied with a copy of the order even if he had not asked for it. I find this reasoning to be unreasonable.
Any prudent advocate or party would not simply sit down and wait to be supplied with a copy of the order simply because he is a party
who is entitled to be supplied with the same even if he does not ask for it. The applicant did not annex a copy of the said order
because he had simply decided to remain idle. The respondentfs advocate Mr. Mchome annexed a copy of the said order in his
reply.
The second ground that the applicantfs advocate miscalculated the days is also
not reasonable. It is not the duty of the Court in cases of this nature to teach parties simple mathematics.
For the above reasons I refuse to extend time within which to file a supplementary
affidavit.
The applicantfs affidavit accompanying the notice of motion does not state
specifically the reasons for the delay from 27.2.2004 when the applicantfs application was refused by the High Court till on
23.12.2004 when he filed this application. The applicant is merely complaining against the refusal by the High Court to grant the
reliefs sought. The affidavit is not very much different from a memorandum of appeal. In fact that affidavit does not even state
anywhere that there was a similar application in this Court which was struck out on 10.12.2004. The supplementary affidavit was supposed
to fill up the gaps by explaining the grounds for the delay from 27.2.2004 when the applicantfs application was refused by
the High Court till on 23.12.2004 when he filed this application in this Court. Since leave to file it has been refused, the gaps
have been left unfilled.
A notice of motion seeking orders for enlargement of time within which to file a
notice of appeal and for enlargement of time within which to apply for leave to appeal to this Court must be accompanied by an affidavit
bearing the grounds for the delay. If the affidavit does not contain the grounds for the delay, the application is incompetent. It
is incompetent for being accompanied by an improper affidavit.
In the instant case the affidavit accompanying the notice of motion does not state
the grounds for the delay from 27.2.2004 when the applicantfs application was refused by the High Court till on 23.12.2004
when he filed this application in this Court. It is an improper affidavit. The impropriety cannot be cured by arguments or submissions
at the hearing, because parties can only argue what is pleaded in the pleadings. They are not allowed to argue outside their pleadings.
The impropriety could only have been cured by the intended supplementary affidavit if leave to file it out of time would have been
granted.
The instant application which is accompanied by an improper affidavit is incompetent.
Under Rule 3 (2) (a) of the Court Rules, 1979 the application is hereby struck out with costs.
DATED at DAR ES SALAAM this 23rd day of September, 2005.
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