THOBIAS JOHN RWAMBA RULING

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA MISCELLANEOUS CRIMINAL APPLICATION NO. 25652 OF 2024 THOBIAS JOHN @RWAMBA………………………………………………APPLICANT VERSUS THE REPUBLIC……………………………………………………………RESPONDENT RULING 17th & 24th February, 2025 KAMANA, J. On 7th January, 2019 Thobias John @Rwamba was ordered to serve thirty years in prison after being convicted by the District Court of Nyamagana of an offence of rape contrary to sections 130 (1) and 2(e) and 131(2) of the Penal Code, Cap. 16 [RE.2002]. According to his affidavit, he timely presented a notice of appeal and handed it over to the Officer In charge of Butimba Prison. However, due to his transfer to Molo Prison in Sumbawanga, he failed to obtain records to prepare his appeal. He associated the delay with the fact that he was incarcerated and hence with no control over his affairs. Mr. Benedicto Ruguge, learned State Attorney representing the respondent, opposed the application. He contended that by not filing the 1 application for almost five years, the applicant was satisfied with the conviction and sentence. He argued that the applicant did not adduce any evidence that he filed a notice of appeal within the time. The learned State Attorney contended that the applicant did not account for each day of delay for such a period. He buttressed his view by citing the case of Sebastian Ndaula v. Grace Rwamafa, Civil Application No. 4 of 2014-CAT (Unreported) in which the apex Court insisted that even a single day of delay must be accounted for. The issue to be determined is whether the applicant has demonstrated good cause warranting an extension of time. This is because, for an application for an extension of time to file an appeal to be granted, the applicant must exhibit a good cause for the delay as provided under section 361(2) of the Criminal Procedure Act, Cap. Cap. 20 [RE.2019] which reads: ‘(2) The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed.’ While I subscribe to that position, I am alive at the principle that courts have discretionary powers to grant extensions of time judiciously 2 upon finding that there is good cause for extending the time to appeal. See: Maneno Muyombe and Another v. Republic, Criminal Appeal No. 435 of 2016-CAT (Unreported). There is no clear-cut definition of what constitutes “good cause”. In that case, the determination of what amounts to “good cause” is the prerogative of the court after taking into consideration various factors including the reasons for the delay, lengthy of delay and diligence of the applicant. The factors were expounded by the Court of Appeal in the case of Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010-CAT (Unreported) as follows: ‘As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: - (a) The applicant must account for all the period of delay; (b) The delay should not be inordinate; 3 (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; (d) If 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.’ While I subscribe to the position of the law enunciated in the case of Lyamuya (Supra), I am of the considered opinion that relaxation of the said factors is inevitable when an applicant for an extension of time to appeal is incarcerated. I hold that view in consideration of the fact that while in prison, the inmate has no control over his affairs that cross- cut beyond the prison. In this, I am persuaded by the position of this court in the case of Barthazari Luilo @Odilo v. Republic, Miscellaneous Criminal Application No.30 of 2021-HC (Unreported) in which my learned Sister Moshi, J had this to state: ‘…the applicant being an inmate serving time in prison had invariably no control over his affairs and it is evident that he was necessarily at the mercy of the officer in charge of 4 the prison for the preparation of his notice of appeal and his appeal.’ Since the applicant had no control over the preparations and filing of the notice of appeal, including making a follow-up, I grant his application. The applicant should file his notice of appeal and the appeal on or before 24th March, 2025. Order accordingly. DATED at MWANZA this 24th February, 2025. KS KAMANA JUDGE 5