frank julius ndege vs republic 2023 tzca 17829 15 november 2023

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CRIMINAL APPLICATION NO. 43/01 OF 2022 FRANK JULIUS NDEGE.............................. ........... ................... APPLICANT

VERSUS THE REPUBLIC......................... ........................... ............... RESPONDENT (Application for extension of time for filing review from the decision of the Court of Appeal of Tanzania at Dar es Salaam) fWambali. Mwandambo and Kitusi JJ, A.) dated the 10th day of February, 2022 In Criminal Appeal No. 369 of 2019

RULING 31st Oct, & 15th November, 2023 ISSA. J.A.; On 10th February 2022, this Court sustained a conviction on the offence of rape contrary to sections 130(1) (2) (e) and 131(1) and (3) of the Penal Code and a sentence of life imprisonment. The applicant is now before the Court with an application for extension of time within which to file a review against the judgment. The application was filed under Rules 10, 48 and 66(1) (a) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by an affidavit of the applicant and the main reason given in his affidavit is that the judgment of the Court was delivered on 10th February 2022 but the certified copy of the judgment was supplied to the applicant on 29th June 2022 which is out of time fixed for filing an application for review. When the application was called on for hearing, the applicant appeared in person and he reiterated the reasons given in his affidavit. Ms. Christine Joas, learned Senior State Attorney who appeared for the respondent/Republic did not object to the application. As mentioned above the judgment of this Court sought to be reviewed was delivered on 10th February 2022, but the certified copy was received by the Officer in Charge of Ukonga prison on 29th June 2022 and this application was filed on 26th July, 2022. Rule 66(3) of the Rules provides that the notice of motion for

review shall be filed within sixty days from the date of judgment or order sought to be reviewed. The task before me, therefore, is to determine whether good cause has been shown by the applicant to entitle him extension of time. The Court's power to grant extension of time is provided under Rule 10 of the Rules and it has been stated in various decisions of this Court that the power of the Court to extend time under this Rule is both broad and discretionary. The discretion is judicial and it must be exercised according to the rule of reason and justice and not according to private opinion or arbitrary. See Lyamuya Construction Co. Ltd v. Board of Registered Trustees of Young Women's Christians Association of Tanzania, Civil Application No. 2 of 2010 (unreported). Further, the power under Rule 10 is only exercisable if good cause is shown. Whereas there is no invariable universal definition of what constitutes good cause, in exercising its discretion under the said Rule, the Court is bound to consider the prevailing circumstances of the particular case and should also be guided by a number of factors such as the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent and whether there is a point of law of sufficient importance such as illegality of the decision sought to

be challenged. This position of law has been restated by the Court in a number of cases including; The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R. 387 and Lyamuya Construction Co. Ltd (supra). But in applications of this nature, the law demands that the applicant should do more than account for the delay. To succeed in showing that he has a good cause under Rule 10 of the Rules, it must be shown further that the applicant has an arguable case. An arguable case is one that demonstrates that the intended grounds of review is at least one of those listed in Rule 66(1) of the Rules. That rule provides:- 66(1) The Court may review its judgment or order but no t■ application for review shall be entertained except on the following grounds - (a) the decision was based on a manifest error on the face o f the record resulting in the miscarriage o fjustice, or, (b) a party was wrongly deprived o f an opportunity to be heard, (c) the Court's decision is a nullity, (d) the Court had no jurisdiction to entertain the case or (e) the judgment was procured illegally, or by fraud or perjury. If an application fails to disclose any of the above grounds, it is deemed not to have disclosed a good cause and is liable to be dismissed (See JUMA SWALE HE v. R Criminal Application No. 4 of 2010, AZARIA FURAHA AND ANOTHER v. R Criminal Application

No. 5 of 2009 (all unreported). In this case, the application for extension of time to file for review out of time was filed on 26th July 2022 after five months and ten days had elapsed from the date the judgment of the Court was delivered. The period from 10th February 2022 to 29th June 2022 when the Officer in Charge of Ukonga prison received the certified copy of the judgment is accounted for, and the period of 27 days from 29th June 2022 to 26th July 2022 when the application was filed is the period which the applicant has been preparing his application with assistance from prison authority. This period is reasonable taking into account that the applicant is serving his time in prison. With respect to the requirement under Rule 66 (1), the applicant has advanced the first and third grounds that there is a manifest error on the face of the record resulting in the miscarriage of justice, and that the Court's decision is a nullity. Having examined that averment in the affidavit and the fact that the application has not been contested by the respondent, la m satisfied that the applicant has explained a way the delay given his situation as a prisoner with limited freedom of movement and resources. Further, he has managed to show that his intended application for review will be predicated on two of the grounds for review listed under Rule 66(1). I accordingly grant the application as prayed in the notice of motion. The applicant should lodge his application for review within 60 days from the date of the delivery of this ruling. It is so ordered. DATED at DAR ES SALAAM this 13th day of November, 2023. A. A. ISSA

JUSTICE OF APPEAL The Ruling delivered this 15th day of November, 2023 in the presence of the applicant via video facility, and in the presence of Ms. Agness Mtunguja, learned State Attorney for the Respondent/Republic,