BHOKE NYAMAKABILA

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY)

THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA] Misc. CRIMINAL APPLICATION No. 30052 OF 2024 (Arising from the District Court of Serengeti at Serengeti in Economic Case No. 109 of 2019) BHOKE MWITA @ NYAMAKABIRA.......................... APPLICANT Versus THE REPUBLIC................................. RESPONDENT

RULING 13.03.2025 & 18.03.2025 Mtulya, J.: The applicant, Mr. Bhoke Mwita @ Nyamakabira was brought before the District Court of Serengeti at Serengeti (the district court) in Economic Case No. 109 of 2019 (the case) for allegation of wildlife offences and at the conclusion of the case, he was found guilty to the charges and sentenced to serve twenty (20) years in prison. The applicant was aggrieved by the decision and immediately filed a notice of intention to appeal in this court in order to dispute the decision of the district court. However, his notice could not be traced since then and for record purposes it was considered to have collapsed. The applicant is still determined to dispute the decision of the district court in the case hence approached this court via section 361 (2) of the Criminal Procedure Act [Cap. 20 R.E. 202] (the Act1) oravina for an order of enlargement of time to prefer an appeal out of time. In order to persuade this court to resolve the application in his favour, the applicant had produced four (4) reasons in the record, namely: first, the prisons authorities have decline his move in pushing for his notice to the court; second, he is not a free agent to make follow-ups of his actions in courts; third, he was transferred from Mugumu Prison through Tabora B Prison to Musoma Prison; and finally, right of appeal is a constitutional right. The reasons

were not protested by Ms. Happiness Machage, learned State Attorney, who had appeared on behalf of the respondent. According to her, the applicant has produced good reasons for leave to file the intended appeal out of time. However, Ms. Machage had registered a very important clause that the applicant in his actions has been declining court orders, which may lead to abuse of court process. In substantiating his submission, Ms. Machage stated that the applicant was previously granted fourteen (14) days leave before Hon. Erick Marley, Principal Resident Magistrate with Extended Jurisdiction on 20th May 2024, but had declined the order. According to Ms. Machage, the applicant may be granted enlargement of time to file the intended notice and appeal out of time, but with a serious note on his behaviours of abusing courts' orders. The law in section 361 (2) of the Act regulates enlargement of time to lodge actions out of time in this court. However, applicants for enlargement of time must produce good reasons to persuade this court to decide in their favour. The practice shows that the mandate of this court under section 361 (2) of the Act is discretionary. It depends on the reasons produced and circumstances of each particular case (see: Robert Wambura @ Mungine v. Republic, Misc. Criminal Application No. 44 of 2022; Samwel Sichone v. Bulebe Hamis, Civil Application No. 8 of

2015; and Republic v. Ramadhani Mohamed Chambali, Criminal Sessions Case No. 11 of 2020). In the instant application, the applicant has produced a total of four (4) indicated reasons of delay and the reasons were appreciated by Ms. Machage, save for the applicant's behaviours of declining court orders. The record shows that the applicant had previously registered notice of intention of appeal within time, but he had declined follow-ups. He was again granted fourteen (14) days leave by Hon, Marley (Extended Jurisdiction) in Misc. Criminal Application No. 17 of 2024, (the application) at the Resident Magistrates Court of Musoma at Musoma, (the RMs court) but had declined all the days in lodging the intended notice and appeal. However, the applicant alleges that his mandate to make follow-ups ends in the hands of prisons' authorities to push his actions and, in any case, he is not a free agent to take his I have read the record the materials produced by the applicant and think that his arguments have merit. I am mindful of the fact that practice in the Court of Appeal shows that applicants for enlargement of time in prisons authorities may be given special consideration of its species (see: Otieno Obute v. The Republic, Criminal Application No.l of 2011 and Yusufu Hassan v. Republic, Criminal Application No. 50/12 of 2017). This court has been following the course, unless there

are good reasons to fault the application (see: Mtatiro Macha Chacha v. Republic, Criminal Application No. 19730 of 2024; Gasaya Bwana @ Chacha v. Republic, Misc. Criminal Application No. 22 oW022; and Juma Moroka Masyora v. Republic, Misc. Criminal Application No. 23 of 2022). The thinking of the Court of Appeal has been that: prisoners are not free agents who can freely make follow-ups on their matters, an order of enlargement of time to lodge actions for them is necessary (see: Yusufu Hassan v. Republic (supra) and Otieno Obute v. The Republic (supra). It is the belief of-this court that prisoners' rights and responsibilities are restricted by the law hence they cannot do what they would wish to do. They may be declined their rights by factors beyond their control. Reading the facts of the application in totality, it is vivid that the applicant was also vigilant for want of his appeal heard at this court. Record shows that he initially filed notice of intention to appeal and later the application in the RMs court. Vigilance on part 4 of applicants for enlargement of time is one of the important factors to be considered in resolving contest of this nature (see: The Registered Trustee of the Evangelical Assemblies of God (T) (EAGT) v. Reverend Dr. John Mahene, Civil Application No. 518/4 of 2017. Having considered all the facts in the application, in the end, I am persuaded to

grant the applicant ten (10) days leave to lodge a notice of intention to appeal and forty-five (45) days to prefer the intended appeal from today in this court without any further delay. Court: This Ruling was delivered in chambers under the seal of this court in the presence of the applicant, Mr. Bhoke Mwita Nyamakabira and in the presence of Ms. Hapiness Machage, learned State Attorney for theRepublic. F. Judge 18.03.2025