IN THE HIGH COURT OF TANZANIA

COMMERCIAL DIVISION
AT OAR ES SALAAM
MISC.COMMERCIAL CAUSE NO.70 OF 2013
1. ANDREW WISTON KALELA NDIMBO
2. CHRISTINA ANDREW NDIMBO

1st APPLICANT
2nd APPLICANT

VERSUS
1. SULEMAN MOHAMED KHAMIS

1st RESPONDENT

2. ANTHONY KONDE SAKI

2nd RESPONDENT

3. ERIC AUCTION COURT BROKER

3rd RESPONDENT

Date of hearing: 19/09/2013

Date of the last order: 19/09/2013
Date of ruling: 01/11/2013

This is a ruling on application for extension of time ANDREW

WISTON KALELA NDIMBO and CHRISTINA ANDREW NDIMBO, the

Applicants herein, lodged in this Court on the 2nd August, 2013, for filing an
application to set aside sale in respect of the Applicants' Plot No.241 Block
"G" Tabata Dar es Salaam. The application was preferred under section
14(1) of the Law of Limitation Act; [Cap.89 R.E 2002] and is supported
by the joint

affidavit

of ANDREW WISTON

CHRISTINA ANDREW NDIMBO.

KALELA NDIMBO and

In arguing the application, Mr. Nassoro, Advocate appeared for the

Applicants and Mr. Masaka, Advocate appeared for the Respondent and
they made oral arguments.
The background to this application briefly as could be gathered from
the sworn affidavit of the Applicants and which were amplified by Mr.
Nassoro, learned Counsel for the Applicants is that, the Applicants were
sued by the 1st Respondent for among other things, payment of TZS

60,000,000 1=. The suit ended with a consent settlement and a decree
entered by this Court. The 3rd Respondentfiled application for execution of
the Decree by selling Plot No. 241 Block "G" Tabata, Dar es Salaam. The
Applicants claim that the said plot was fraudulently sold by a purported
public auction to the 2nd Respondent.The Applicants allege in the affidavit
the following particulars of fraud; that, no duly public auction was
conducted for the sale of the said plot; that, no publication of the alleged
public auction was made; that, the purported proclamation of sale did not
state the true amount for the recovery of which the sale was ordered; that,
the alleged public auction was conducted before the expiry of the 30 days
prescribed period from the date of the purported proclamation of sale
issued by the Court and that before the purported sale as there was no
court order for attachment of the said plot. The Applicants contend further
that upon noticing those fraudulent actions, they filed an application in this
Court to set aside the said sale, which was struck out on technicalities on
the 31st July, 2013. The Applicants however, are still aggrieved with the
illegal sale of the plot and since time to challenge the said sale has expired

the Applicants are now seeking extension of time since they are bonafide
prosecuting the former application.
Responding to the submissions of Mr. Nassoro in support of the
Application, Mr. Masaka learned Counselfor the Respondentsargued that,
fraud is not a ground warranting the Court to grant extension of time. The
applicant was supposed to account each day delay from the day when
execution was taken place, Mr. Masaka further submitted. Mr. Masaka
submitted further that since the execution took place on the 30th October,
2011, that is the date in which the Applicants' property was sold by public
auction and therefore the Application to set aside the sale ought to have
been lodged in this Court within 30 days from the date of the sale.
According to Mr. Masaka, there is no explanation in the Applicants' joint
affidavit accounting for the delay. Mr. Masaka referred this Court to the
case of

AL-IMRAN

INVESTMENT

LTD

VERSUS

PRINTPARK

TANZANIA LIMITED & ANOTHER, Misc. Civil Cause No.128 of 1997

(unreported) in which Nsekela,J., held that:

''In order for the applicant to have benefit of section 14(1) the
Applicant ought to explain the delay of every day that passes beyond
the described period of limitation. Sadly, as stated above there is no
such explanation at all let alone sufficient cause that has been given
by the Applicant There is no material before me on which I can base
my judicial discretion to extend the period of limitation. "

Amplifying on the above legal position, Mr. Masaka referred this

Court to the case of DAUDI

HAGA VERSUS JENITHA ABDON

MACHAFU, Civil Reference No.1 of 2000 (unreported) in which it was

held that; ''In order for extension of time to be granted reasons accounting
for the delay have to be advanced. "
Mr. Masaka submitted further that, the Applicants have failed to
account for the delay and as such there is no ground advanced warranting
this Court to grant the application for extension of time and prayed that
the application be dismissedwith costs.
Mr. Nassoro in rejoinder argued that, the reasons for the delay have
been clearly stated under paragraph 6 of the joint affidavit of the
Applicants, that they were bonafide prosecuting the former application
which was struck out by this Court on 31st July, 2013. The application to
set aside the said sale was filed in this Court on the 1ih November, 2011.
Therefore the application was filed immediately after the Applicants
noticing that, the sale was fraudulently conducted. Mr. Nassoro submitted
further that aside from this fact, the explanation of the Applicants in
paragraphs 4, 6 and 7 of their sworn affidavit in support of the application
are sufficient.
Mr. Nassoro took

issue with the cited cases of AI-Imran

Investment Ltd and Daudi Haga (above) that they are irrelevant. Mr.
Nassoro added that, the previous application was struck out on 31st July,
2013, and this application was filed on the 2nd August, 2013, which is a
delay of two days. Mr. Nassoro surmised by arguing that, it is well known
that, where fraud is alleged in any proceedings, the Court is always bound

to grant extension of time, but did not cite any case authority for this
disposition.
The present application which is for extension of time has been
brought under section 14(1) of the Law of Limitation Act Cap.89 R.E 2002.
Section 14(1) which provides that:

"(1) Notwithstanding the provisions of this Ace the court maYJ.for

any reasonable or sufficient cause, extend the period of
limitation for the institution of an appeal or an application, other
than an application for the execution of a decree, and an application
for such extension may be made either before or after the expiry of
the period of limitation prescribed for such appeal or application."
(the emphasis is of this Court).

The Applicants have advanced the reasons for the delay in applying
for extension of time in paragraph 6 of their joint sworn affidavit in support
of the application. The Applicants state therein that, all the time they were
bonafide prosecuting the application for setting aside sale, which
application this Court struck out on the 31st July 2013. The issue is whether
this reason constitutes reasonableor sufficient cause for this Court to grant
extension of time. As per the court record, the "purported" sale of the suit
property on Plot NO.241 Block "G" Tabata Dar es Salaam was made by
public auction on the 30th October, 2011. The Applicants lodged their
application for setting aside the said sale in this Court on the 1ih
November, 2011. This Court pursuant to that application entered its ruling

st

on the 31

July, 2013 striking it out on the ground that the affidavit in

support of that application was wrongly attested and therefore rendered an

application incom petent.
The pertinent question therefore becomes when does time begins to
run for purpose of application for extension of time. In my considered view
the limitation period started to run from the date in which the purported
sale by public auction took place, which was on 30th October, 2011.
Reckoning from that date, that is, 30th October, 2011, to 2nd August, 2013
when this application was lodged in this Court, it will be delay of more than
a year. However, the law does not provide for a time limit for application
for extension of time to file application to set aside sale. This being the
case therefore resort is to be had to Item 21 of Part III to the Schedule of
the Law of Limitation Act, Cap.89 R.E 2002, which provides for 60 days for
all applications for which no period of limitation is provided for under that
law or in any other written law.
Mr. Nassoro argued that, the limitation period starts to run from the
date in which the former application was struck out. I am of the considered
view and with due respect to Mr. Nassoro that, in the eyes of the law once
an application has been struck out, there is nothing left and it is considered
that that application never existed at all. As Mr. Masaka rightly submitted,
time starts to run from the date in which the purported sale took place, the
very date the purported fraud is alleged to have been committed.
It is without doubt that the Applicants have delayed to lodge their
application for setting aside the purported sale for more than a year. The
pertinent question here is whether the reasons the Applicants advanced to

account for the delay are reasonable or sufficient for this Court to grant
extension of time. The Applicants have advanced as their main reason for
the delay, that they were bonafide prosecuting the application for setting
aside sale, which this Court struck out on technicalities on the 31st July
2013. Indeed the Court record shows that since 30th October, 2011, the
Applicants have been busy trying to set aside the purported sale and they
allege the sale was tainted with fraud. Allegation of fraud is a serious one,
which the Court should not take lightly. This being the case therefore,
considering that the Applicants are alleging the existence of fraud in the
purported sale of the suit property, this constitutes a sufficient ground for
this Court to extend time for the Applicants to bring application for setting
aside the sale of Plot NO.241 Block "G" Tabata Dar es Salaam. This will
provide an opportunity to Court to determine whether indeed there was
fraud in the sale of the suit property as the Applicants allege.
It is for the above reasons that the application for extension of time
succeeds. The Applicants are hereby granted extension of time to bring
application to set aside the sale of the suit property Plot No.241 Block "G"
Tabata Dar es Salaam within fourteen days of this order. Costs shall follow
the event. Order accordingly.

R.V. MAKARAMBA
JUDGE
01/11/2013

Ruling delivered this 01 st day of November 2013 in the presence of

st

Mr. Andrew Weston Kalela Ndimbo, the 1 Applicant in person and in the
absence of the Respondents.

~r-------L

.................... ~~

R.V. MAKARAMBA

JUDGE
01/11/2013