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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA MISC. CRIMINAL APPLICATION NO. 438 OF 2025 (Originating from the District Court of Momba at Chapwa in Criminal Case No. 98 of 2023) GIVEN SHILONDE MKISI…………..……..….………………..APPLICANT VERSUS THE REPUBLIC…………………….……..……..…..………..RESPONDENT RULING 13 January 2025 & 13 January 2025 SINDA, J.: The applicant has brought this application under Section 361 (1) and (2) of the Criminal Procedure Act, Cap 20 R.E 2022 (the CPA). The applicant prays for the following orders: (i) That this Honorable Court be pleased to extend time for the applicant to file an appeal and a notice appeal out of time in Criminal Case No. 98 of 2023. 1 (ii) Any other relief as this Honorable Court may deem fit and just to grant. The chamber application is dully supported by an affidavit sworn by the applicant. The applicant has alleged to have been convicted of first count burglary c/s 294 91) (a) (b) and 2 of the the Penal Code, Cap 16, R.E 2022 (the Penal Code), second count of stealing c/s 258 (1)(2) and 265 of the penal Code, third count for possession of goods suspected of having been stolen or unlawfully acquired c/s 312 (1) (b) of the Penal Code and sentenced to serve five (5) years imprisonment for the first count, three (3) years imprisonment for the second count and both sentences to run concurrently. At the hearing, the applicant appeared in person and was unrepresented. The respondent was represented by Mr. Rajab Msemo, Learned State Attorney. The applicant briefly prayed the court to adopt his reasons set forth in his affidavit. Mr. Msemo did not object to the application. The applicant stated that on 19 April 2024, the trial court in Criminal Case No. (8 of 2025 delivered the judgement in favour of the respondent. He was aggried by the said judgment hence filed notice of appeal immediately 2 after receiving the judgement. However, the applicant could not get any help to file the petition of appeal until now he has found an advocate. He emphasized that the delay was not his fault as it was beyond his control. On the other hand, the respondent opted not to file the counter affidavit. Having considered the submissions of both parties and examined the grounds stated in the applicant’s affidavit, the question is whether there is any justification for this court to exercise its discretion under Section 361 (2) of the CPA. The said provision states that: “The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has lapsed” From the record, it is clear that the applicant prepared the notice of appeal on time but he didi not get legal support to file his petition of appeal on time. Considering that the applicant is currently serving time in prison, he has no control over his affairs. The filling was at the mercy of the prison authority. It has been decided in a number of cases that being in prison, the applicant loses control of the appeal process, thus amounting to sufficient 3 cause for the delay. See: Buchumi Oscar vs. Republic, Criminal Appeal No. 295 “B” of 2011 (CAT, unreported), William Ndingu @ Ngoso vs. Republic, Criminal Application No. 3 of 2014 (CAT, unreported) and Maneno Muyombe and Another vs. Republic, Criminal Appeal No. 435 of 2016. As a result, I find the applicant advanced good cause for the delay. I grant the application. The applicant is to file a notice of appeal and petition of appeal within 45 days from the date of this Ruling. DATED at MBEYA on this 13 day of January 2025. A. A. SINDA JUDGE 4