image5352

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) (AT MOROGORO) MISC. CRIMINAL APPLICATION NO. 20563 OF 2024 (Originated from the decision the Criminai Case No. 184 of 2021, of Kiiosa District Court) CASSIUS FESTO LWEBANGIRA APPLICANT VERSUS THE DIRECTOR OF PUBLIC PROSECUTION RESPONDENT Date of last order: 21/10/2024 Date of Ruling: 25/10/2024 RULING MAGOIGA,J. The appiicant, CASSIUS FESTO RWEBANGIRA was indicted before Kiiosa district court (the triai court) for one offence of corrupt transaction vide Criminai Case No. 184 of 2021. After fuli triai, the triai court found the accused guiity of the offence charged and sentenced him to pay fine or face custodian sentence. The appeiiant paid fine. But still aggrieved with both conviction and sentence, his efforts to appeal to this court have been in vain. Found himself out of time, has now preferred this application under Section Page 1 of 8 361(2) of the Criminal Procedure Act, [Cap. 20, R.E 2022] praying for the foilowing reliefs, namely: - 1. This, Honourable Court be pleased to extend time within which to file a Notice ofIntention to appeal out oftime. 2. This, Honourable Court be pleased to extend time within which to file an appeal out oftime. 3. Any other order or orders as this Honourable Court deem tit and just to grant. The application was supported by an affidavit sworn by the applicant stating the reasons for the grant of the appiication, while on the other hand, the respondent. Republic, fiied counter affidavit sworn by Ms. Monica Matwe, learned State Attorney stating the reasons why this application should not be granted. When this application was called on for hearing, the applicant was represented by Mr. Deckrine Dominic Kweka, learned advocate. And the respondent enjoyed the legal service of Ms. Monica Matwe, learned State Attorney. The application was argued viva voce. Page 2 of 8 Mr. Kweka taking the floor prayed to adopt the applicant's affidavit to be part of their submission. According to Mr. Kweka, the applicant has two reasons why he should be granted an extension of time and same are contained in paragraphs 5 and 6 of the affidavit. Expounding the reasons, the learned advocate argued that the applicant's intended appeal has a high possibility of success if leave is granted to lodge notice of intention to appeal and a memorandum of appeal out of time because the trial magistrate erred in law and in facts for failure to notice that the charge against the applicant was not proved beyond reasonable doubt. On the second reason, Mr. Kweka expounded that the applicant's failure to lodge a notice of intention to appeal and appeal itself, was not due negligence but due to the unforeseeable human errors. According to Mr, Kweka, the first attempt by the applicant being a layman in law filed an appeal without notice and it is the reason he was given an extension of time to file this application and readily complied with the same. On the above reasons, he prayed this honourable Court to grant reliefs prayed for. Page 3 of 8 In response, Ms. Matwe for the Republic prayed to adopt the respondent's counter affidavit and strongly disputed the application because an assertion that will win the case is not enough as no particulars were given to expound the grounds and show how he will win the case. On the second reason, Ms. Matwe replied that the applicant's conduct exhibits ignorance of law and not human error. She cited the case of Marmo s/o Slaa @ Hofu & Another vs Republic (Criminal Application 2 of 2020)[2022] TZCA 770(5 December 2022) At page 5, which stated that: - ''Ignorance of law is no excuse and cannot amount to sufficient cause for extending time to take a certain step''. Furthermore, Ms. Matwe contended that for this court to grant an extension of time, there must be reasonable ground to satisfaction of the court. On this point the learned Attorney referred the court to the case of Shabani Mohamed Mwanambingu vs Ally Bwana Ally (Misc. Land Application 707 of 2019)[2021]TZHCLandD 6730(12 March 2021) which is very dean. Page 4 of 8 According to Ms. Matwe, para 7 of the affidavit was not expounded, hence, she prayed the application not to be granted. In rejoinder, Mr. Kweka argued that, the issue of ignorance of law raised by the learned state attorney is a new fact that was not stated in their affidavit and emphasized that the sufficient cause has been stated that the case was not proved to the standard required in criminal law and strongly urged this application be granted. Having gone through the parties' rival submissions, the only issue for , determination is whether the application is meritorious. This application has been preferred under Section 361(2) of the Criminal Procedure Act, [Cap. 20, R.E 2022]. For easy of reference section 361(2) provides as follows: - Section 361(2) The High Court may, for good cause, admit an appeai notwithstanding that the period ofiimitation prescribed in this 5ecf/(0/7/7^5 (Emphasis added) Reading iiteraiiy from the wording of the above provision, two things emerge: one, discretion to grant extension, and two, the applicant must Page 5 of 8 demonstrate good cause before the court can exercise Its discretion for extension of time. In my respective opinion, good cause cannot be pegged on cut and paste but will depend on each particular facts of each case. In the case of Jackson Godwin vs Republic (Criminal Application No. 1/04 of 2023)[2024] TZCA 273(9 April 2024)Tanzlii, page 7 the Court of Tanzania at Bukoba stated that; ''As to what exactly constitute good cause, the discretion has been ieft to the Court as in essence there is no hard and fast ruie in establishing the same''. In the instant application, the applicant argued that there is likely hood to winning the intended appeal. In this he argued that the suit was not proved to the required standard in criminal cases. Ms. Matwe contended that this assertion was not expounded to the extent of giving the court what they mean that the suit was not proved beyond reasonable doubt. Not only that but that the applicant has demonstrated ignorance of law which is not a good cause. Having considered the rivaling arguments by the parties, and the above cited cases, with due respect to the learned Attorney, the argument in Page 6 of 8 criminal cases that the case was not proved beyond reasonable doubt is a serious legal point of law. This, in my considered opinion, is a very serious legal point of law that amount to good cause which parties can get chances to expiain if an extension is granted. The argument that the same was to be done at this stage do not convince me otherwise. Faiiure to prove a criminal case beyond reasonable doubt amounts to good cause where extension is sought by the applicant as in this case. Even without engaging into other arguments, I find this point suffices to grant this appiication and much as parties will be heard on merits, it will be of academic exercise to engage on other arguments. Finaliy, for the foregoing discussion, it is ciear that the applicant has been abie to satisfy the conditions for the grant of the extension of time to file his appeal. Hence the application is meritorious and the appiicant is given ten days from today within which to fiie notice of appeal and 30 days within which to file his appeal in this court. It is so ordered. Dated at Morogoro this 25*'^ day of October, 2024. Page 7 of 8 I fSm/MAGOIGA JUDGE 25/10/2024 Page 8 of 8