The applicant, Tanzania Railway Corporation, being represented by Mr. Muhango, learned advocate, was seeking an extension of time
within which to institute an appeal after the expiration of the prescribed sixty days on 02/11/04. The application is supported by
affidavits of Mr. George Kilindu, learned counsel, and one Francis Matage, a clerk of Mr. Kilindu.
What the two affidavits portray is that Mr. Kilindu left for China on business on 12/09/04 and on 14/09/04 a copy of a certificate
of delay was received by Francis Matage who overlooked to bring it to the attention of Mr. Kilindu upon his return on 05/10/04. However,
on 08/11/04 Mr. Kilindu received summons to appear before the Registrar to receive a ruling in Civil Application No. 106 of 2004
for stay of execution. That notice caused Mr. Kilindu to discover that the certificate of delay had already been issued. Hence he
filed this application on 17/11/04.
On behalf of the respondent was Mrs. Genevieve N. Kato, learned counsel, who said in her affidavit and also in Court that the forgetfulness
of an advocate’s clerk is not sufficient cause to grant extension of time. I agree with this contention. There have been a
number of occasions when this Court has not been persuaded with such a reason as the forgetfulness or negligence of a clerk of an
advocate. I have not been able to lay my hands on any such case. But if an error of advocate is not sufficient cause it is not difficult
to see that the fault of a clerk of an advocate cannot be.
Even if, for the sake of argument, I accept that Matage is the cause of this situation, Mr. Kilindu has not demonstrated a speedy
reaction to remedy the fault. He received the summons on 08/11/04 but the notice of motion for this application was signed two days
later, on 10/11/04 and it was lodged on 17/11/04, that is, nine days later. Admittedly, Mr. Kilindu in his counter-affidavit has
said that the necessary fees were paid on 16/11/04 and has attached a photo copy of the GRR bearing that date. But one wonders why
the fees were paid six days after the notice of motion was signed. Surely that does not send a message of a realization of a fault
and a desire to rectify it.
Because of the reasons I have given above, I dismiss this application with costs.
DATED at DAR ES SALAAM this 17th day of October, 2005.
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