Atul Hamis vs Republic pdf

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MANYARA AT BABATI MISCELLANEOUS CRIMINAL APPLICATION NO. 33573 OF 2024 (Arises from Criminal Appeal No. 16299 High Court of Tanzania, Manyara Sub-Registry, Originated from Economic Case No. 19/2022 in Babati District Court at Babati) ATYLU HAMISI ...................................................... APPLICANT VERSUS THE REPUBLIC ................................................. RESPONDENT RULING 12th & 26th March, 2025 Kahyoza, J. Atylu Hamisi (the Applicant) was convicted with the offence of unlawful possession of government trophy to wit being in possession of 157.60kg of fresh meat of kudu and sentenced to serve 20 years custodial sentence. He did not appeal within the specified time hence, he applied to this Court for extension of time to appeal. The respondent Vehemently opposed the application. The issue is whether applicant has disclosed sufficient reasons(s) for delay. A brief background as per the record is that; the applicant was charged 1 together with three other accused persons. The district court convicted all four accused persons and sentenced them to serve a mandatory sentence of 20 years imprisonment. They were all aggrieved and lodged the notice of appeal. They were convicted on 27.2.2022 and signed the notice of appeal on 28.2.2023. The district court received the notice of appeal on 06.03.2023. The applicant’s co-accused persons and convicts secured services of Mr. Joachim advocate and lodged the appeal. The applicant who was not represented did not file his appeal though he had lodged the notice of appeal. Having realized that he was time barred to file his appeal, the applicant applied for extension of time. This Court granted to leave to the applicant to appeal out of time. The applicant was required to lodge the notice of appeal within 10 days and file his appeal within 45 days. The applicant lodged his appeal on the 13.6.2024. It was Criminal Appeal No. 000016294/2024. Before the court heard the appeal, it found out the applicant had lodged the appeal out of time and dismissed it. Following the dismissal of the appeal, the applicant instituted the current application. Thus, this is a second application for extension of time. As the record bears testimony, this is a second application for extension of time. The applicant’s ground for applying for extension of time is that the e-case management system was not stable so he could not appeal on time. 2 There was another ground for delay found in the affidavit of Omari Shabani Mnguluri, the legal officer of Babati prison, that, he could not file the appeal as there was an issue of non-matching of reference numbers. I wish to state at the outset that, the applicant did not adduce sufficient reason for delay. After this Court extended time for the applicant to lodge the appeal out of time, he had 45 days to comply with the order. The applicant and the prison officers waited until the last minutes to lodge the appeal. Why would one wait until the last days of 45 days to appeal. I am not convinced that the applicant and whoever was processing his appeal exercised diligence. It is impossible that e-CMS was down all those 45 days within, which the applicant was required to file his appeal. For argument’s sake, let us agree with the applicant that on time of lodging the appeal the e-CMS was down. The law is clear that when e-CMS is not accessible or available a party may orally apply to the Registrar or the Resident Magistrate in-charge for exemption to file the document electronically and he may be allowed to file it manually. For clarity I reproduce rule 20 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018, GN. No. 148/2018. “20- (1) The Registrar or a magistrate in-charge may, upon an oral 3 application by a party, his advocate or his authorized representative, exempt a party from filing electronically of the whole or part of the pleadings or documents where: (a)electronic filing is, for reasons to be explained in the application, not feasible; (b)there are concerns about confidentiality and protection of privacy; (c)the document cannot be scanned or filed electronically because of its size, shape or condition; (d)the electronic filing system is either inaccessible or not available; or (e)where for any other reason it is deemed sufficient to warrant the exemption. (2) Where the Registrar or magistrate in-charge is satisfied that there was good cause for exemption, he shall grant the request under sub- rule (1) in writing”. The applicant and those processing the application for extension of time, did not prove that after they found the e-CMS not accessible did approach the Deputy Registrar for exemption. I am therefore, not convinced that the applicant was prevented by the unavailability or un-accessibility of the e-CMS. Consequently, I find that applicant did not adduce sufficient reason for delay. I dismiss the application for want of merit. It is ordered accordingly. 4 Dated at Babati, this 26th day of March, 2025. J.R.KAHYOZA, J Court: Ruling delivered in the virtual presence of the applicant and Ms. Anifa State Attorney for the Respondent. B/C Shadrack present. J.R.KAHYOZA, Judge 26.03.2025 5