APPARENT ILLEGALITY AS SUFFICIENT CAUSE FOR EXTENSION OF TIME: THE HIGH COURT REAFFIRMS ESTABLISHED PRINCIPLES

HIGHLIGHTS

• Apparent illegality in an impugned decision may constitute sufficient cause for extension of time.
• An applicant relying on illegality must demonstrate that it is apparent on the face of the record and sufficiently important to warrant appellate consideration.
• Failure to account for every day of delay may not be fatal where the established threshold of apparent illegality is satisfied.
• Diligence, promptness and good faith remain relevant considerations in applications for extension of time.
• The court's discretion must be exercised judicially, having regard to the circumstances of each case.

1. INTRODUCTION

The High Court of Tanzania, sitting at Shinyanga, in Sonda Machibya v. Enoka Budeba Lyochi, Misc. Land Application No. 17705 of 2026, [2026] TZHC 6570, delivered a Judgement on 3 November 2026, reaffirmed the established principles governing applications for extension of time, particularly where an applicant relies on an alleged illegality in the decision sought to be challenged.

The decision provides a useful illustration of the relationship between the ordinary requirement to account for delay and the recognised exception where apparent illegality is established. It demonstrates that failure to account for the entire period of delay does not necessarily defeat an application where the alleged illegality is apparent on the face of the record and sufficiently important to warrant consideration by an appellate court.

Although the decision does not introduce a new principle, its significance lies in the Court's application of established jurisprudence to circumstances in which the applicant had not adequately explained the entire period of delay.

2. BACKGROUND OF THE CASE

The applicant approached the High Court seeking an extension of time within which to appeal against the decision of the District Land and Housing Tribunal for Kahama in Land Application No. 26 of 2023, delivered on 25 July 2025. The application was brought under section 44(2) of the Land Disputes Courts Act, Cap. 216, R.E. 2023.

The applicant alleged illegality in the Tribunal's proceedings, particularly its reliance on testimony concerning an alleged sale of the disputed land by a witness who was neither the seller nor a party to the transaction. The respondent opposed the application, principally arguing that the applicant had failed to account for a delay of more than one year.

In determining the application, the Court acknowledged that the applicant had not adequately accounted for the entire period of delay. Nevertheless, upon examining the alleged illegality, it found that the Tribunal had committed an error of law by relying on testimony to establish a transaction in which the witness had not participated.

The Court consequently found that the error was apparent on the face of the record and sufficiently important to warrant appellate consideration. It granted the application and held that, in the circumstances, it was unnecessary for the applicant to account for every day of delay.

3. PRINCIPLES GOVERNING APPLICATIONS FOR EXTENSION OF TIME

3.1 Judicial Discretion and the Requirement of Sufficient Cause

Extension of time is a matter of judicial discretion. However, that discretion is not exercised arbitrarily; it must be exercised judiciously, taking into account the evidence, reasons advanced and circumstances of each particular case.

An applicant seeking an extension bears the responsibility of demonstrating reasonable or sufficient cause. What amounts to sufficient cause is not determined by a rigid formula but depends on the circumstances of the particular application.

In Lyamuya Construction Company Limited v. Board of Registered Trustees of YWCA Tanzania, Civil Application No. 2 of 2010, [2011] TZCA 4 (3 October 2011), the Court of Appeal identified the principal considerations to be taken into account when determining an application for extension of time. The Court stated that:

“(a) the Applicant must account for all the period of delay, (b) the delay should not be inordinate, (c) the Applicant must show diligence, not apathy, negligence or sloppiness in the prosecution of the action that he intends to take and (d) the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged.”

These considerations provide the general framework for determining applications for extension of time. They are particularly important in assessing the explanation for delay, the conduct of the applicant and the nature of the legal issues intended to be raised.

However, the requirement to account for delay must be considered alongside the recognised exception relating to apparent illegality. The two cannot be treated as though the ordinary requirement invariably overrides every other sufficient reason advanced by an applicant.

3.2 Apparent Illegality as Sufficient Cause

The existence of illegality in a decision sought to be challenged is an established ground upon which a court may grant an extension of time. The underlying principle is that an apparent and material illegality should not be left without appellate examination merely because the prescribed time for challenging the decision has expired.

In Jehangir Aziz Abdulrasul v. Baloziibrahim Abubakar & Another, Civil Application No. 79 of 2016, [2016] TZCA 797 (22 April 2016), the Court of Appeal addressed the responsibility of the court where an applicant relies on illegality in the impugned decision. The Court stated:

“The Applicant is also relying on the ground of illegality in respect of the decision being challenged. It is alleged that it was based on an incomplete record. The Court has a duty even if it means extending the time for the purpose of ascertaining the point and to take appropriate measures. See The Principal Secretary, Ministry of Defence and National Service v Devram Valambia (1992) TLR 182 and VIP Engineering and Marketing Limited and Three Others v Citibank Tanzania Limited, Consolidated Civil References No.6, 7 and 8 of 2001 CAT (unreported).”

The principle is that where an applicant raises an apparent illegality of sufficient importance, the court may extend time to enable that issue to be examined by the appropriate appellate forum.

Nevertheless, an allegation of illegality is not, by itself, sufficient. The applicant must demonstrate the nature of the alleged illegality and its importance. The allegation must be apparent on the face of the record and must not merely amount to dissatisfaction with the decision or an attempt to reopen the merits of the dispute through an application for extension of time.

3.3 Failure to Account for Every Day of Delay Where Illegality Is Established

The ordinary requirement to account for delay must be distinguished from the recognised exception where illegality is relied upon as sufficient cause.

In VIP Engineering and Marketing Limited and 3 Others v. Citibank Tanzania Limited, Consolidated Civil References Nos. 6, 7 and 8 of 2006, the Court of Appeal established the principle that illegality in the challenged decision may constitute sufficient reason for extension of time, notwithstanding the absence of a reasonable explanation for the delay.

The Court stated:

“It is, therefore, settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under rule 8 (now rule 10) regardless of whether or not a reasonable explanation has been given by the Applicant under the rule to account the delay.”

This position was reaffirmed in Attorney General v. Emmanuel Marangakisi and 3 Others, Civil Application No. 138 of 2019, [2023] TZCA 63 (24 February 2023), where the Court of Appeal stated:

“Pursuant to the cited decisions, allegation of an illegality is good cause for extension of time even if the applicant has failed to account for each day of delay. Consequently, since the applicant has alleged that there is illegality in the impugned decision, I find the application meritorious which I hereby grant.”

These decisions establish that failure to account for every day of delay does not necessarily defeat an application where the alleged illegality satisfies the established legal threshold.

This principle does not, however, mean that an applicant is automatically entitled to an extension upon merely alleging illegality. The court must still be satisfied that the alleged illegality is apparent and sufficiently important to warrant appellate consideration.

The decision in Sonda Machibya v. Enoka Budeba Lyochi provides a practical illustration of this position. Although the applicant had not adequately accounted for the entire period of delay, the High Court identified an error of law apparent on the face of the record and consequently granted the extension sought.

3.4 Diligence, Promptness and Good Faith

Although apparent illegality may constitute sufficient cause notwithstanding an inadequately explained period of delay, the applicant's conduct remains relevant to the court's exercise of discretion.

An applicant is expected to demonstrate diligence in pursuing the intended proceedings and to act promptly upon becoming aware of the decision or the circumstances necessitating an application for extension of time.

In Wilbard Mathew Senga v. Mkwega George Mathew Senga and Another, Civil Application No. 508 of 2020, [2023] TZCA 241 (10 May 2023), the Court of Appeal reiterated the considerations governing applications for extension of time, including the requirement that an applicant demonstrate diligence rather than apathy, negligence or sloppiness.

The Court also referred to the principle in Royal Insurance Tanzania Limited v. Kiwengwa Strand Hotel Limited, where it was stated:

“It is trite law that an applicant before the Court must satisfy the Court that since becoming aware of the fact that he is out of time, act very expeditiously and that the application has been brought in good faith.”

This requirement emphasises that an applicant should not remain inactive after becoming aware that a decision needs to be challenged. Promptness and good faith are relevant in determining whether the court should exercise its discretion in favour of the applicant.

Accordingly, reliance on apparent illegality should not be treated as an unrestricted licence to delay. The court must consider the alleged illegality together with the applicant's conduct and the circumstances surrounding the application.

3.5 Importance of the Legal Issue Raised

The nature and importance of the legal issue intended to be raised are also relevant considerations in determining whether sufficient cause exists.

An applicant relying on illegality should identify the specific legal error and demonstrate why it deserves consideration by the appellate court. A mere disagreement with the findings of a lower court or tribunal, or an attempt to reopen the merits of a concluded matter under the label of illegality, does not satisfy the established threshold.

The distinction is important because an application for extension of time is not ordinarily intended to determine the substantive appeal or revision. Rather, the court must be satisfied that the circumstances and grounds advanced justify allowing the intended proceedings to be instituted out of time.

The point of law relied upon must therefore be sufficiently important to warrant examination by the appellate court. This requirement ensures that the exception relating to illegality is applied to genuine legal errors rather than used as a means of circumventing prescribed limitation periods.

4. APPLICATION OF THE ESTABLISHED PRINCIPLES IN SONDA MACHIBYA

The decision in Sonda Machibya v. Enoka Budeba Lyochi demonstrates how the established principles operate where an applicant has not adequately explained the entire period of delay.

The High Court acknowledged the applicant's failure to account for the entire period. However, it examined the alleged illegality and found that the Tribunal had erred in relying on testimony concerning a transaction in which the witness had not participated.

The Court considered that error sufficiently apparent on the face of the record and important enough to warrant appellate consideration. It consequently held that it was unnecessary for the applicant to account for every day of delay and granted the application.

The significance of the decision is therefore not that the ordinary requirement to explain delay has been abolished, but that the requirement must be considered alongside other recognised grounds constituting sufficient cause.

It further demonstrates the importance of properly identifying the alleged illegality. The applicant must do more than simply state that a decision is illegal; the alleged error must be identifiable from the record and must raise a substantial point deserving appellate examination.

The decision is consistent with the authorities discussed above, particularly Lyamuya Construction Company Limited, Jehangir Aziz Abdulrasul, VIP Engineering and Marketing Limited and Attorney General v. Emmanuel Marangakisi. It reinforces the established approach that the court's discretion must be exercised with due regard to both procedural requirements and the need to permit examination of apparent legal errors.

5. CONCLUSION

In Sonda Machibya v. Enoka Budeba Lyochi, the High Court reaffirmed the established principle that apparent illegality in an impugned decision may constitute sufficient cause for extension of time, even where the applicant has failed to account for every day of delay. The decision, read together with the authorities discussed above, demonstrates that applications for extension of time require a consideration of the explanation for delay, the applicant's diligence and good faith, and the nature and importance of the legal issues raised. Ultimately, extension of time remains a judicial discretion, to be exercised judiciously in the circumstances of each case, with the objective of ensuring that an apparent and material illegality is not denied appellate examination solely on account of procedural delay.

DISCLAIMER

This article is not intended to offer legal advice but rather aims to provide general information on the subject matter discussed. It does not constitute and should not be relied upon as legal advice. Kazi Law Office explicitly disclaims any responsibility for any loss that may occur if this article is relied upon without first seeking professional legal advice from our legal experts. Individuals should consult qualified professionals for tailored legal guidance related to their specific circumstances.