Masatu Edward Ruling FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY)

AT SHINYANGA MISC. CRIMINAL APPLICATION NO. 202408272000024483 (Arising from Economic Case No. 6 of 2023 in the District Court of Kahama at Kahama) DIRECTOR OF PUBLIC PROSECUTIONS………….….....……….. APPLICANT

VERSUS 1. MASATU EDWARD MNYORO 2. SHELLA NAZARETH CHAULA …….………………… RESPONDENTS 3. NTANWA KILAGWILE KABIKA

RULING Date of Last Order 23.09.2024 Date of Ruling: 25.10.2024 MWAKAHESYA, J.: This is an application for extension of time to file a petition of appeal, preferred by the Director of Public Prosecutions. It is made under section 379(1)(a), (b) of the Criminal Procedure Act (the CPA) and has been brought by way of chamber summons, supported by the affidavit of Ms. Caroline John Mushi. The respondents, resisting the application, have filed a counter affidavit sworn by one Gervas Gabriel Geneya, an advocate who doubles as the respondents’ counsel. The brief background to the application is that, in the District Court of Kahama sitting at Kahama (the district court), the respondents 1 were charged with an economic crime case (Economic Case No. 6/2023). The same was dismissed on 16.11.2023 on the pretext of flouting section 4(2) of the CPA. The respondents were thus discharged, much to the ire of the applicant. Aggrieved, the applicant filed a notice of intention to appeal and after receipt of the judgment and proceedings of the district court, she filed an appeal at the High Court, only to realize on 17.06.2024 that the appeal had been filed four days out of time. The appeal was duly struck out by the High Court. Undeterred, the applicant endeavors to appeal against the decision of the district court thus filing the present application seeking to be allowed to file the appeal out

of time. At the hearing of the application, the applicant was represented by Ms. Nyamnyaga Magoti, learned State Attorney, while the respondents were represented by Mr. Gervas Gabriel Geneya, learned advocate. Having adopted the affidavit of Ms. Caroline Mushi to form part of the applicant’s submission, Ms. Magoti submitted that, the notice of intention to appeal was filed on 08.12.2023 and simultaneously the ruling and copy of the proceedings was requested for. The appeal was then filed on 16.05.2024 after receipt of the records. 2 The learned State Attorney submitted further that, it came to light of the applicant that the appeal had been out of time for four days, i.e., it was filed on the 49th day. She attributed the late filing of the petition of appeal to poor communication between the Prevention and Combating of Corruption Bureau office at Kahama (the PCCB), who had conducted the botched prosecution at the district court, and the National Prosecutions Service Office Shinyanga. She elaborated that, the former had informed the applicant that the records had been supplied on 01.04.2024 but it turned out that the records were supplied on 27.03.2024. Ms. Magoti was adamant that, extension of time is warranted because Economic Case No. 6/2023 was marred with irregularities and the applicant seeks audience in the High Court in order to rectify those irregularities, on appeal

that is. The learned State Attorney relied on the case of Mekefason Mandali and 8 Others v. The Registered Trustees the Archdiocese of Dar es Salaam, Civil Application No. 397/17 of 2019 (unreported), where the Court of Appeal held that if there is an illegality in a decision then it is sufficient cause for extension of time. 3 In reply, and having adopted his counter affidavit to form part of his submission, the learned advocate for the respondents informed the court that the respondents were resisting the application. He then went on to submit further that, the affidavit in support of the application does not disclose the illegality complained of. He relied on the Court of Appeal decision of Zuberi Nassor Moh’d v. Mkurugenzi Mkuu Shirika la Bandari Zanzibar, Civil Application No. 93/15 of 2018 (unreported) to support his submission. The learned counsel went further to submit that, the decision complained of has not been attached by the applicant, which makes the application incompetent. He relied on the High Court decision of Salma Said Hamza v. Kher Said Omary and Another, Misc. Civil Application No. 94 of 2022 (unreported) where in an application for extension of time, the impugned decision was not attached, and the High Court went on to determine that the alleged illegalities had not been established. In rejoinder, the learned State Attorney reiterated the

applicant’s prayer that the extension of time sought should be granted. 4 Having gone through the affidavits for and against the application, the rival submissions and the authorities cited as well, what is left is for this court to determine the merits or otherwise of this application. Appeals by the Director of Public Prosecutions are provided for under sections 378, 379 and 380 of the CPA. But for the sake of this application sections 378 and 379 are of particular relevance. Section 378 provides: “378. -(1) Where the Director of Public Prosecutions is dissatisfied with an acquittal, finding, sentence or order made or passed by a subordinate court, other than a subordinate court exercising its extended powers by virtue of an order made under section 173 of this Act, he may appeal to the High Court. (2) An appeal to the High Court under this section may be on a matter of fact as well as on a matter of law. (3) Notwithstanding the provisions of subsections (1) and (2), no appeal shall lie against or be made in respect of any preliminary or interlocutory decision or order of a subordinate court unless such decision or order has the effect of finally determining the criminal charge.” Meanwhile, section 379 provides: “379. -(1) Subject to subsection (2), no appeal under section 378 shall be entertained unless the Director of Public Prosecutions or a person acting under his

instructions- 5 (a) has given notice of his intention to appeal to the subordinate court within thirty days of the acquittal, finding, sentence or order against which he wishes to appeal and the notice of appeal shall institute the appeal; and (b) has lodged his petition of appeal within forty five days from the date of such acquittal, finding, sentence or order; save that in computing the said period of forty five days, the time requisite for obtaining a copy of the proceedings, judgment or order appealed against or of the record of proceedings in the case shall be excluded. (2) The High Court may, for good cause, admit an appeal notwithstanding that the periods of limitation prescribed in this section have elapsed. [Emphasis added]. From the above, it is clear that the applicant has to establish good cause in order to warrant this court to extend time to appeal. However, there is no clear definition of the phrase “good cause” and the same is defined according to the peculiar circumstances of each case. In Airtel Tanzania Limited v. Misterlight Electrical Installation Ltd. and Another, Civil Application No. 37/01 of 2020 (unreported), the Court of Appeal had this to say: “…It may not be possible to lay down an invariable or constant definition of the phrase "good cause" but the Court consistently considers such factors like, the length of delay involved, the reasons for the

delay; the degree of prejudice, if any, that each party stands to suffer depending on how the Court exercises its discretion; the conduct of the parties, 6 and the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal…” The applicant has claimed that the decision of the district court in Economic Case No. 6/2023 was tainted with irregularities, but as correctly pointed out by the learned counsel for the respondents the said decision was not annexed to the affidavit of Ms. Mushi in support of the application. As a result, it is impossible for this court to ascertain the alleged illegality, if any, which must be apparent on the face of record (see Lyamuya Construction Company Limited v. The Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). I, therefore, find that the authorities cited by Mr. Geneya, Zuberi Nassor Moh’d and Salam Said Hamza (supra) are relevant, and as a result the alleged illegalities have not been established by the applicant. However, as stated beforehand, the applicant through the affidavit of Ms. Caroline John Mushi has asserted that the four days delay, was due to miscommunication between her office and the PCCB office (Kahama). The respondents have not disputed that the

proceedings in Economic Case No. 6/2023 were supplied through the office of the 7 PCCB – Kahama. In fact, in paragraph 6 of the affidavit of learned counsel Geneya that fact has been noted. It follows then that the likelihood of confusion as to the date communicated to the applicant’s office is real, and the delay of four days pointed out in the affidavit of Ms. Mushi, learned Senior State Attorney and argued by Ms. Magoti, learned State Attorney is justified. In the same vein, I therefore find that the applicant has shown sufficient cause for this court to extend the time for filing the intended appeal. In view of the above, this application is allowed. The applicant is to file her appeal within 30 days from today. It is so ordered. N.L. MWAKAHESYA

JUDGE 25/10/2024 8