juma idd milanzi v the republic 2023 tzhc 20782 5 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA SUB - REGISTRY

ATSONGEA MISC. CRIMINAL APPLICATION NO. 09 OF 2023 (Originating from Namtumbo District Court in Criminal Case No. 79 of2022) JUMA IDD @ MILAN ZI.................... APPLICANT

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

RULING Date of last Order: 16/08/2023 Date of Ruling: 05/09/2.023 U.E. Madeha, J. This is an application filed by the above-named Applicant seeking for extension of time within which he can filed notice of intention to appeal and petition of appeal out of time. The application is made by way of chamber summons under section 361 (2) of the Criminal Procedure Act (Cap. 20, R. E. 2022) and it is supported by an affidavit sworn by the Applicant. i When this application was called on for the hearing, the Applicant was represented by Mr. Optatus Japhet, the learned advocate, whereas Mr. Madundo Mhina the learned State's Attorney represented the Republic. The reasons advanced by the Applicant is due to the fact that; the Applicant's delay to file the appeal was due to sickness. Mr. Japhet Optatus argued that after the delivery of the trial Court judgment the Applicant, was sick and he was in prison and he was attending the prison dispensary for treatment. He added that the Applicant attended the treatment on 7th May, 2023 and he was given medicine which he used up 15th February, 2023, and when he was using the medicine, his health was not in good condition. He tendered the certificate from the dispensary which was admitted as part of his submission. He contended further that illness is one of the grounds for granting extension of time. To buttress his contention, he invited this Court

to be persuaded by the decision made in Kioo Ltd. v. Felix Burchard Kalunda, Misc. Labour Application No. 12 of the 2021 High Court of Tanzania Labour Division (unreported). Another reason advanced by the Applicant in his affidavit is the illegalities found on the trial Court proceedings and judgement. The first illegality is on the admission of the caution statement without following the 2 procedures laid under section 50 (1) of the Criminal Procedure Act (Supra). He argued that the Cautioned statement was recorded one day after arrest of the Applicant which was contrary to the law. The second illegality Is on the victim's age. He argued that the Court also failed to make clear determination of the victim's age. On the contrary, Mr. Mad undo Mhina adopted the Respondent’s counter-affidavit and stated that it is true that granting an order for the extension of time is an issue of discretion of the Court if it finds the reasons given by the Applicant are genuine to enable the Court to exercise its discretion power. Mr. Mhina contended that sickness is one of the reasons for the extension of time but the Applicant has failed to state the number of days the Applicant was sick and he was admitted at the prison dispensary. On the second reason advanced by the Applicant, Mr. Mhina averred that the proceedings and judgment of the trial Court has no any sort of illegality. Rejoining to

the submissions made by the Respondent's learned State Attorney, Mr. Optatus Japhet submitted reiterated what was submitted in his submission in chief and prayed for this Court to grant the extension of 3 time within which the Applicant can lodge the notice of intention to appeal and petition of appeal. As much as this application is concerned, the issue is whether the Applicant has adduced sufficient reasons to enable this Court to use its discretion power to grant the extension of time for the Applicant to file his appeal out of time. I have carefully considered the reasons adduced by the Applicant in this application. The Applicant has adduced two main reasons. The first is on Illegality in the Court proceedings and its corresponding judgment. In his submissions, the Applicant's learned advocate didn't explain which illegality are found on the proceedings and judgment of the trial Court. For illegality to be used as a ground for extension of time, the Applicant should successfully show that the alleged illegality can really be seen on the face of the record. On my part I have gone through the submission made by the Applicant's advocate and I find that the stated illegalities must be apparent on the face of the records. From the submissions made by the Applicant's advocate, I find that in order to see whether there is an illegality in the proceedings and judgment of the trial

Court, I has also to peruse the original records of the case from 4 the trial Court, which is not the duty of this Court in an application for extension of time. See the decision of the Court of Appeal of Tanzania in the case of Salehe Omary Ititi v. Nina Hassan Kimaro, Civil Application No. 583/03 of 2021. Therefore, I am of the view that discussing on the illegality or irregularity of the proceedings or judgment of the trial Court at this stage, I will be preempting the duty of an appellate Court. I find this ground has failed. On the second reason that the Applicant was sick immediately after the delivery of the judgment of the trial Court and he was sent into prison where he attended treatment at the prison dispensary. To prove his allegation the Applicant tendered the certificate from the dispensary which was admitted as an exhibit. In Mathias Paul Mtasa v. Ruth Mhoji and Two Others, Wise. Civil Application No. 101/2020 (High Court of Tanzania at Mwanza) (unreported), it was held that: "It has been held in numerous decisions that where sickness is pleaded, the same can serve as a ground for setting aside a dismissal or ex-parte decision or even granting extension of time" 5 Therefore, from the submissions made by the learned advocate for the Applicant and the tendered exhibit, I do not hesitate to say that the Applicant was sick. I find the Applicant's sickness is a

sufficient reason for the delay to warrant this court to exercise its discretion power to grant the enlargement of time to file the notice of intention to appeal and petition of appeal. Therefore, the Applicant is hereby given ten (10) days from the date of this ruling to lodge his notice of intention to appeal and the petition of appeal. It is so ordered. DATED and DELIVERED at SONGEA this 5th day of September, 2023.

HA

JUDGE 05/09/2023 COURT: Ruling is read over in the presence of the Applicant and Mr. Mdundo Mhina, the learned State Attorney for the Respondent. Right of appeal is explained.

JUDGE 05/09/2023 6