MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY) AT ARUSHA MISCELLANEOUS CRIMINAL APPLICATION NO.39 OF 2023 (Arising from Criminal Appeal No. 3 of 2023, Original Criminal Case No. 14 of 2022 Arumeru District Court) JULIUS LOTOVUAKI KAAYA..................... Ist APPLICANT MATHAYO SINGO KAAYA................................ 2nd APPLICANT FRANK SINGO KAAYA.......................................................... 3rdAPPLICANT SIMON SINGO KAAYA.......................................................... 4thAPPLICANT SANDE SINGO KAAYA.......................................................... 5thAPPLICANT MOSES SINGO KAAYA.......................................................... 6thAPPLICANT VERSUS THE REPUBLIC................................................ RESPONDENT RULING 12/04/& 08/05/2024 KIWONDE, J.: The applicants named above filed an application by way of chamber summons supported by a joint affidavit praying for the following court orders: i (a) That, this honourable court be pleased to extend time for the applicants to file notice of appeal to the Court of Appeal of Tanzania from the decision of this honourable court in Criminal Appeal No. 3 of 2023, emanating from Criminal Case No. 14 of 2022 at Arumeru District Court. (b) Any other order or relief (s) this court deems fit and equitable to grant. The respondent was served, however, did not file counter affidavit and so, the matter proceeded ex parte. On 12/04/2024 it was agreed by the counsel for the applicants and ordered by this court that the application be argued by way of filing written submissions and he filed them. In his submissions in-chief, the counsel for the applicants, argued that the decision in Criminal Appeal No. 3 of 2023 was delivered on 30th May 2023 and under Rule 68 (1) of the Court of Appeal Rules, 2019, the period available for lodging notice of appeal is within 30 days from the date of decision which lapsed on 30th June 2023. According to the learned counsel, the reasons for delay are that the 2nd, 3rd, 5th and 6th applicants were in jail/ prison until mid-August 2023 when they were released to serve community service and they all, together with 2 others who were discharged, were seriously sick, thus, they could not lodge the notice of appeal in time. They somehow recovered on 14th October 2023 and they electronically filed this application on 16th October 2023 while, physical documents were received by the court on 23rd October 2023. Apart from that, the counsel for the applicants asserted illegality in the decision of an appeal before this court, Criminal Appeal No.3 of 2023 that the ownership of land is in dispute and there is a pending land case in the District Land and Housing Tribunal for Arusha, Application No. 14 of 2022 filed by Ms. Tanzanaia (2000) Adventure Ltd (the victim) in which among the reliefs sought is compensation for the damaged property. Thus, this court, confirming the conviction on malicious damage to property was premature. Finally, it was submitted that the respondent will not be prejudiced in anyway, if this application is granted. The counsel for the applicants cited some case laws which I find not necessary to repeat them here. From the pleadings and written submissions, the main issue for determination is whether sufficient cause has been shown for the court to 3 issue an order extending time for the applicants to lodge notice of appeal out of time. In law, the court can extend time within which the applicants can file notice of appeal out of time if they establish sufficient or good cause for their delay. The aspect of good cause depends on the circumstances of each case. However, the factors which the court takes into consideration before granting order extending time include; one, length of time of delay, two, reason for delay, three, if the applicants were not diligent to pursue their rights, four, whether grant of the order extending period of filing notice of appeal will prejudice the respondent and five, if the applicants can account for each day of delay, six, whether there is arguable case, such as a point of law or illegality apparent on the face of record. This was a position in Mohamed Salum Nahdi Versus Elizabeth Jeremiah, Civil Application No. 474/01 of 2016 and Wambele Mtumwa Shahame Versus Mohamed Hamis, Civil Reference No.8 of 2016, Court of Appeal of Tanzania at Dares Salaam (both unreported). In the application at hand, the applicants delayed to file notice of appeal to the Court of Appeal of Tanzania due to illness. Those who were incarcerated in jail fell sick and even those who were discharged, were sick. This fact is not disputed as the respondent did not file counter affidavit. The fact was deponed under paragraphs 10 and 11 of the applicants'joint affidavit. In law, facts deponed in affidavit are evidence which if not refuted, are believed to be true. Illness is something beyond human control. Immediately after their somehow recovery on 14th October 2023, they filed this application on 16th October 2023, two days later. This is not inordinate delay in taking action. Therefore, the applicants were prevented by illness from lodging notice of appeal within time and did not sleep over their rights. Besides that, the applicants, in paragraphs 12 and 13 of the affidavit, have raised a point of illegality apparent on the decision sought to be impugned. The issue of ownership of the land and damaged property was yet to be determined to ascertain that the applicants damaged the property of another person. In Stephen B. K. Mhauka Versus The District Executive Director Morogoro District Council and 2 others, Civil Application No.68 of 2019, Court of Appeal of Tanzania at Dar-es salaam (unreported) it was categorically stated that illegality which is apparent on the face of record is a good ground for allowing application for extension of time however long period of delay may be. 5 Based on the reason of illness, illegality and that the application stands unopposed, I find the applicants have shown sufficient cause for the grant of order of extending time within which they file notice of appeal out of time. As a result, I find and hold that the application finds merits. It is hereby allowed. The applicants are availed with fourteen (14) days from the date of this ruling to lodge notice of appeal to the Court of Appeal of Tanzania. It is so ordered. Dated at Arusha this 8th May 2024. r‘ F. H. KIWONDE JUDGE 08/05/2024. Court: Ruling is delivered in court room in the presence of Ms. Glory Komba, advocate holding brief of Mr. Simon Mbwambo counsel for the applicants, Eunice Makalla, State Attorney for the respondent Republic and Mariam (RMA) this 8th May 2024 and the right of appeal is explained. F. H. KIWONDE JUDGE 08/05/2024 6