Mroso, J.: The applicant was the losing party in an appeal from the Primary Court of C Maji ya Chai to the District Court of Arusha. She filed (PC) Civil Appeal No. 47 of 1985 to this court. But in doing so she contravened the procedure stipulated in section 25(3) of the Magistrates Courts Act, 1984 by filing the petition of appeal directly in the High Court instead of filing it in the District Court of Arusha. Because of that this D court was moved by Mr. Umbulla, learned advocate for the respondent, to strike out the appeal which was not properly before it. Following that order, the applicant through her advocate, Mr. Musei, wishes to file the appeal afresh, in the correct procedure. But E since the time for appeal has long run out, she has filed this application for leave to appeal out of time. In the Chamber Application Mr. Musei has cited Section 25(l)(b) of the Magistrates' Courts Act, 1984 and Section 4(l) of the Law of Limitation Act. The application is supported by the affidavit of the applicant. F
The main reasons given in the applicant's affidavit for the enlargement of time are that she is an illiterate woman who was ignorant of the provisions of section 25(3) of the Magistrates' Courts Act, 1984 and that the High Court registry staff did not inform her at the time she presented her petition of appeal that it ought to have been presented in G the District Court from the judgment of which the appeal was preferred.
During the hearing of the application Mr. Musei elaborated that even lawyers had been overlooking the requirements of section 25(3) of the Magistrates' Courts Act, 1984 H and, therefore, that this court should show special consideration for a lay and illiterate person like the applicant. Mr. Musei further submitted that the applicants appeal to this Court which was struck out for not being properly before the court had in fact been filed in time and that the applicant's intended appeal is meritorious. I
Mr. Umbulla for the respondent vehemently resisted the application and asked the A court to dismiss it. He submitted that there have not been shown special and adequate grounds for the delay in filing the appeal and that ignorance of the law is not an excuse. In support of that submission, he cited the case of Rozendo Ayres Ribeiro v Olivia Daritta Siqueira E. Fachao and Lilia Ozlinda Pia Daritta Siqueira [1934] Vol. I B EACA 1 where it was held that if an appeal is not filed in time, special circumstances have to be shown for extension of time to appeal. Examples of special circumstances were given as where there has been any misleading through any conduct of the other party or where some mistake had been made in the office itself, and the party was C misled by an officer of the Court or where some sudden accident which could not have been foreseen accounted for the delay. But a mere misunderstanding of the provisions of appeal rules will not amount to special circumstances. D
Mr. Umbulla also cited a Ruling of this Court in Miscellaneous Civil Application No. 97 of 1992 Martin Paul v Gerald Valery: unreported, in which it was held that filing an appeal in the wrong court is not a sufficient ground for extension of time to appeal. It was further argued by Mr. Umbulla citing the Court of Appeal of Tanzania Miscellaneous E Civil Application No. 20 of 1988 - Maulidi Hussein v Abdallah Jumaas authority, that mistake of counsel or applicant or even prospects of the intended appeal succeeding is not a sufficient ground for granting leave to appeal out of time.
In response to the arguments and the authorities cited by Mr. Umbulla, Mr. Musei said F that those authorities were not relevant to the application under consideration. He said the applicant who was not represented by counsel when she filed her appeal, had in fact acted with due diligence in filing it in time, albeit in the wrong court. G
An appeal to the High Court from the decision or order of the District Court in proceedings originating from the Primary Court has to be filed within 30 days of such decision or order, according to section 25(l) of the Magistrates' Courts Act, 1984. There is a proviso however, that the High Court may extend the time for filing such appeal. Even H so, there must be sufficient reason to make the High Court exercise its discretion to extend the time, for the High Court in exercising its discretion it must act judicially. To act judicially implies acting for good or sufficient reason.
The applicant who admittedly is a lay person, and it is claimed she is illiterate, acted in I time in preparing her petition of appeal to
the High Court against a decision of the District Court of Arusha sitting as a first A appellate Court. The question is whether her ignorance of the procedure as contained in section 25(3) of the Magistrates' Courts Act, 1984 can amount to sufficient reason to give her enlarged time to refile the appeal, this time in the correct court. B
I have had the advantage of reading through the cases which were cited to me by Mr. Umbulla.
In the Ribeiro v Siqueira case Counsel for the applicant for extension of time under Rule 8 of the Eastern Africa Court of Appeal Rules, 1925 had claimed that a misinterpretation C of the judgment of the Supreme Court of Kenya had been the cause for failure to appeal in time against that judgment. The Court of Appeal said in that connection:
D Now before the applicant can succeed he must show that there have been special grounds for his delay in presenting his appeal, and here we would observe. That it is settled law that a mistake made by him or by his counsel as to the effect of the judgment could not per se constitute a good ground for granting his application. E
Citing the case of in Re Coles and Ravenshear [1907] 1 KB 8 where Farewell, L.J. said:
F A mere slip or blunder on the part of the litigant's legal adviser cannot, in my view, entitle him to anything at all the Court of Appeal for Eastern Africa refused to grant leave.
In CAT Civil Application No. 20 of 1988 - Maulidi Hussein v Abdallah Juma case G (unreported), it was held that negligence or want of diligence by counsel for a party is not a sufficient reason for granting leave to appeal out of time. A similar view was held in CAT Civil Application No. 13 of 1987 - Institute of Finance Management v Simon Manyaki (also unreported). However, in both the Simon Manyaki case and in the case H of Shah Hemras Bharmal and Brothers v Santosh Kumari w/o J.N. Bhola [1961] E.A. 679 a significant departure appears to have been made from the Ribeiro v Sequeira case in that mistakes of legal advisers, within limits, may amount to sufficient reason for extending time to appeal. In the Simon Manyaki case Kisanga, J.A. said: I
A The decision in each case must depend on the facts and circumstances of the individual case ... The point to stress here is that counsel's mistake may amount to sufficient reason only where the mistake involves a minor or slight lapse, but not where it involves a lapse of a fundamental nature.
That was also the view which was expressed by the Court of Appeal of Tanzania in the B case of Kighoma Alli Malima v Abas Yusufu Mwingamno, Civil Application No. 5 of 1987 (also unreported). The Ruling of this court in the Martin Paul v Gerald Vallery was based solely on the EACA decision in Ribeiro v Siqueira case. C
Apart from the Ribeira v Siqueira and Martin Paul v General Vallery cases which said that mistakes by applicants (as distinct from those made by their counsel) cannot be considered (whatever they may be?) as providing sufficient reason for extending time for appeal, the other cases to which I have referred centred on mistakes or negligence or D lack of diligence on the part of counsel for parties. I think where a mistake relates to a procedure as set out by law but otherwise there is no negligence or want of diligence, a distinction should be drawn between a lawyer and a lay person.
A lawyer is trained on how and where to look for the law. It is easy for a court to E reject his plea that he did not realise that a certain legal procedure for filing an appeal existed. But a lay person who has been acting with due diligence may easily be misled by a wrong practice. For example, it is a fact that until I put a stop to it and issued firm directions, it had been the practice in this court for a long time for appeals in proceedings F originating from the Primary Court to be filed directly in the High Court, in complete oblivion of the provisions of section 2 5(3) of the Magistrates' Courts Act, 1984. There are scores of decisions of this court in appeals which were filed in contravention of section 25(3) referred to, and which remain "valid" because no one as yet has appealed G to the Court of Appeal to have them overturned on that ground. For my part, therefore, I shall be inclined to accept as a sufficient reason a plea by a lay person that he be allowed to file out of time in the appropriate court an appeal which has been struck out or is voluntarily withdrawn from the High Court, because it had been wrongly filed there, but H timeously.
The last point I have to consider in this application is whether I should allow it, Mr. Musei said the intended appeal stands a good chance of success. Mr. Umbulla disputes that I argument and said that in fact it stands no such chance.
In the case of Mugo and Another v Wanjiru and Another [1970] E.A. 481, leave to A appeal out of time was sought on the ground that proceedings in the Supreme Court of Kenya were conducted in breach of the principles of natural justice, suggesting thereby that the intended appeal had a high likelihood of succeeding. The Court said: B
I would agree to this extent, that I do not think the fact that an appeal appears likely to succeed can of itself amount to a "sufficient reason". Normally, I think, the sufficient reason must relate to the inability to take the particular step in time, but I am not prepared to say that C no other consideration may be invoked.
The court granted the extension of time sought because there had been a distinct possibility that the proceedings in the Supreme Court had been conducted in breach of D principles of natural justice, in that the parties had not been given opportunity to be heard.
In the application before me, although, it is stated in the applicant's affidavit that the appeal was "meritorious" no copy of the judgment against which the appeal is intended E was annexed to the application. So, this court has no means to verify the claim that the appeal is or is not "meritorious".
Mr. Umbulla for the respondent, however, has submitted that the respondent has been on the disputed land since 1980, after buying it. The applicant was aware of that fact and did F not take any steps to challenge the respondent's occupation until four years later, in 1984. For those reasons Mr. Umbulla prayed that the application be dismissed with costs.
As I have already said I am not in a position to know the merits of the intended appeal G but since I have found for the reasons discussed earlier that the applicant has shown sufficient cause, leave is hereby granted to the applicant to file the intended appeal out of time. The period is extended to 14th December, 1992.
H Application allowed.
A
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