EMMANUEL DAISON NYONDO

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA MISCELLANEOUS CRIMINAL APPLICATION NO. 13010 OF 2024 CASE REFERENCE NO. 202405162000013010 (Originating from the District Court of Chunya in Criminal Case No. 135/2021) EMMANUEL DAISON NYONDO .................................................... APPLICANT

VERSUS THE REPUBLIC ........................................................................ RESPONDENT

RULING Date of hearing: 19/08/2024 Date of ruling: 7/10/2024 NONGWA J. The applicant Emanuel Daison Nyondo has brought this application under section 361(2) of the Criminal Procedure Act [Cap 20 R.E 2022] “the CPA” seeking extension of time within which to lodge notice of appeal and petition of appeal out of time in Criminal Case No. 135 of 2021 in the district court of Chunya. It is supported by an affidavit sworn by the applicant. The respondent, Republic did not file counter affidavit to oppose or support the application. 1 In the applicants’ affidavit, it is alleged that the applicant is the prisoner everything depends on prisoner authority, hence the delay was beyond his control. When the application came on for hearing the applicant appeared in person whereas the respondent Republic was represented by Mr. Salmin Zuberi, State Attorney, he informed the court that had no objection to the application. In his submission the applicant adopted the contents the affidavit to form his submission and prayed to the court to grant orders as prayed in the chamber summons. Having considered the application documents, the striking question in this application is whether there is any justification for this court to exercise its discretion under section 361(2) of the CPA. It provides; The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation

prescribed in this section has elapsed. The said provision gives this court discretion to admit an appeal notwithstanding that the period of limitation prescribed in this section has lapsed provided that there is good cause. It is trite law that extension of time is a matter of discretion of court, but such discretion must be exercised judiciously and flexibly with due regard to the relevant facts of the particular case. It follows therefore, the grounds upon which an order 2 for extension of time may be granted or otherwise would also depend on the circumstances of each case. Ordinarily, those grounds should be outside one’s control. This was the position in the case of Felix Tumbo Kisima vs TTCL and Another [1997] TLR 57 it was stated that: ‘It should be observed that "sufficient cause" should not be interpreted narrowly but should be given a wide interpretation to encompass all the reasons or cause which are outside the applicant's power to control or influence, resulting in delay in taking any necessary steps.’ The applicant is too economical of words in his affidavit, however, I have taken note that the prison officer has certified that the application was prepared by the applicant himself. Also, there is no resistance from the republic on the prayers sought being granted to the applicant. I find inspiration in the words of Mruma J. in the case of Abel Kayusi Mchengesi &

Germanus Venus Libweha vs Republic, Criminal Appeal No. 39547 of 2023 & 12166 of 2024) [2024] TZHC 8280 (28 August 2024; TanzLII) when he stated; ‘... in my opinion where the Republic (i.e. the prosecution) concedes at the appeal level that it did not have sufficient evidence to support the conviction during the trial, unless there is any good, sufficient and serious reasons, to hold otherwise, court must accede to the Republic or 3 complainant's view. To hold otherwise may make put the impartiality nature of courts in jeopardy.’ The above applies even to the application at hand, as the republic has conceded to the application, I find no reason to hold otherwise than grant extension of time as sought. From the above, I grant the application. The applicant is given ten days (10) to lodge notice of intention to appeal counting from the date of the delivery of this ruling. Furthermore, through the prison officers if the applicant is not in possession of proceedings and judgment, the same be availed to him and upon receipt should lodge the petition of appeal within forty-five (45) days. V.M. NONGWA

JUDGE 7/10/2024 Dated and Delivered at Mbeya this 7/10/2024 in presence of the parties. V.M. NONGWA

JUDGE 4