JACOB ELIA

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

SUB REGISTRY OF MBEYA

AT MBEYA MISC. CRIMINAL APPLICATION NO 31393 OF 2024 CASE REFERENCE NO. 202411042000031393 JACOB S/O ELIA KATALA……………………….……………………APPLICANT

VERSUS THE REPUBLIC………………………………………………………RESPONDENT

RULING 16th & 23rd December, 2024 NONGWA, J. The applicant has brought this application under section 361 (2) of the Criminal Procedure Act, Cap 20 R.E 2022. In his application he prays for the following orders: (i) That this Honorable court be pleased to grant the applicant leave for an extension of time within which to lodge notice of appeal and Petition of Appeal out of time in criminal case no. 52 of 2021. (ii) Any other relief this Court may deem fit and just to grant The chamber summons is dully supported by an affidavit sworn by the applicant. From the applicant affidavit, the applicant has alleged to 1 have been convicted for the offence of rape C/S 130 (1) (2) (e) and 131 (1) of Penal Code Cap 16 R.E 2019 and sentenced to serve thirty (30) years imprisonment term. He averred that he appealed to the high court under criminal appeal no. 50/2023 which was transferred to the magistrate with extended jurisdiction after being registered as extended jurisdiction Criminal Appeal No. 23/2023 but when the appeal stood for hearing on 2/7/2024 the court struck out the notice being defective for typing errors and was allowed to refile the same. That being a prisoner he had no hand on the defects noticed and they are beyond his control. The Respondent, Republic has opted not to counter the application. When the application was called up for hearing, the applicant appeared in

personal (un represented) he prayed his application and affidavit to be adopted and form part of submission for his application while the respondent enjoyed the service of Mr. Lordgard Eliaman, the Learned State Attorney, the respondent did not object the application. I have examined the grounds stated in the applicant’s affidavit, the issue is whether there is any justification for this court to exercise its discretion under section 361 (2) of the Criminal Procedure Act, Cap 20 (Revised Edition 2022). The said provision gives this court discretion 2 where there is good cause to admit an appeal notwithstanding that the period of limitation prescribed has lapsed. 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 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 where the court stated that sufficient cause should not be interpreted narrowly but should be given a wide interpretation to encompass all the reasons which are outside the applicant's power to control or influence,

resulting in delay in taking any necessary steps. It is stated from the applicant’s affidavit that he filed his appeal in time but the same was struck out for being defective caused by typing errors a thing which is beyond his control as a prisoner. I have considered the particular circumstances of the applicant being serving time in prison, the applicant has no control over his affair. It has been observed in the number of decisions including the case of William Ndingu @ Ngoso vs Republic, Criminal Application No.3 of 2014 (CAT, unreported) and Maneno Muyombe and Another vs 3 Republic, Criminal Appeal No. 435 of 201, that being in prison, the applicant loses control of the appeal process thus amounting to sufficient cause for the delay. Based on the circumstances of this application, I find applicant has advanced good cause for delay. In that regard I grant the application, notice of intention to appeal be filed within 14 days from the date of this ruling and the petition of appeal be filed in accordance with the dictate of the law. V.M. NONGWA

JUDGE 23/12/2024 Dated and Delivered at Mbeya this 23rd December, 2024 in presence of the applicant and the respondent. V.M. NONGWA Judge 4