George Komba vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB- REGISTRY AT SONGEA MISC. CRIMINAL APPLICATION NO. 21285 OF 2024 (Originating from Criminal Case No. 36943 of 2023 in the District Court of Songea at Songea) GEORGE KOMBA ……………………………………….……………………… APPLICANT VERSUS THE REPUBLIC ……………………………….……………………………. RESPONDENT RULING Date of Hearing: 27th August, 2024 Date of Ruling: 27th August, 2024 KAWISHE, J.: This is an application for extension of time within which to appeal out of time to this court against a decision of the District Court of Songea at Songea in Criminal Case No. 36943 of 2023. The application is made by way of chamber summons under section 361 (2) of Criminal Procedure Act, 1 CAP 20 R. E. 2022 (the CPA). The application is supported by an affidavit sworn by George Komba, the applicant. The applicant was charged before the District Court of Songea convicted and sentenced to serve 30 years imprisonment for the 1st count of Armed Robbery contrary to section 287A of the Penal Code (Cap. 16, R.E 2022); in the 2nd count, to serve 7 years imprisonment for the offence of Causing Grievous Harm contrary to section 225 of the Penal Code (Cap. 16, R.E 2022). Hence this application for extension of time to file his appeal against the decision of the trial court. In his affidavit under paragraph 3 of his affidavit he averred that, he lodged notice of appeal but during the hearing of the appeal it was noticed that he did not serve the notice of intention to appeal. He further stated that he was sick that is why he could not file the notice on time. At the hearing of the application, the respondent’s learned State Attorney Ms. Mfanyakazi, supported the application. She stated that, they perused the file and realized that the applicant was diligent in pursuing his appeal. That since he was sick and given the circumstances he experienced; the respondent supports the application so that the appeal 2 can be heard on merits. Since the learned State Attorney supported the application, the applicant who appeared in person unrepresented had nothing to add rather he was thankful. I have given due consideration to both parties’ brief submissions for this application. As a matter of principle, it is exclusively in the discretion of the court whether to grant or refuse an application for extension of time as stated in section 361(2) of the CPA. The said provision confers the High Court with discretion in the following terms: “The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed.” In exercising the discretionary powers vested to this court by the provisions of section 361(2) of the CPA, the vital question to be answered is whether the applicant has advanced good cause for his delay to lodge his petition of appeal out of time. In answering the question, consideration is made to the grounds adduced in the applicant’s affidavit sworn in support of the application, specifically under paragraphs 3 and 4, centered on sickness. 3 The applicant raised the ground of sickness as the major reason for the delay in filing his notice of intention to appeal. The reason was not objected by the respondent. Given the fact that the applicant is an inmate a special consideration has to be given to his application. While contemplating on this application, I am persuaded by the reasoning applied in the case of Rhobi s/o Kitang'ita Chacha vs. Republic Criminal Application No. 58 of 2023, where learned Judge cited the case of Maneno Muyombe & Another vs. Republic, Criminal Appeal No. 435 of 2016 (unreported) where it was state that: “Being inmates serving time in prison, the appellants invariably had no control over their affairs and that they were necessarily at the mercy of the Officer-in-Charge of their prison, as it were. In this regard, it was to expect too much from them.” The same principle was advanced in Maneno Muyombe & Another vs. Republic, Criminal Appeal No. 101 of 2007, where the Court stated that: “In view of the wording of section 361 (2) (formerly Section 361 (b)), all that is required of the appellant is to show "good cause" before the High Court can invoke its discretionary powers to extend time.” 4 In consideration of the reasons adduced by the applicant under paragraphs 3 and 4 of the sworn affidavits, the applicant has shown a good cause, thus, the answer to the question, whether the applicant has advanced good cause for his delay to lodge his petition of appeal out of time is answered in the affirmative. This court in Rhobi s/o Kitang'ita Chacha vs. Republic (supra) deciding an application for extension of time, while exercising its discretionary powers, cited the case of Kassana Shabani & Another vs. Republic, Criminal Appeal No. 476 of 2007 (unreported) where Court of Appeal had this to say: “Since there appears to be a recurring or perennial problem, we would like to take this opportunity to make it dear that once an applicant under section 361 of the Act has satisfactorily accounted for the delay in giving notice of appeal or filing a petition of appeal, extension of time ought to be granted as a matter of right.” From the excerpt above, the applicant is an inmate, at the same time he fell sick in prison. Given the position of the Court of Appeal in granting extension of time, I feel obliged to allow this application as prayed for and supported by the respondent. In consequence, the application is allowed. 5 The applicant is granted leave to lodge notice of appeal to the High Court against the decision of the District Court of Songea, Criminal Case No. 36943 of 2023 within ten (10) days from the date of delivery of this ruling and lodge his appeal respectively. It is so ordered. DATED and DELIVERED at SONGEA this 27th day of August, 2024. E.L. KAWISHE JUDGE COURT: Ruling delivered in Chambers this 27th day of August, 2024 in the presence of Ms. Esther Mfanyakazi, learned State Attorney and the applicant who has appeared in person and unrepresented. E. L. KAWISHE JUDGE 27/08/2024 6