JUMA WAMBURA RULING 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY)

THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) Misc. CRIMINAL APPLICATION No. 25445 OF 2024 (Arising from the High Court [Musoma Sub Registry at Musoma] in Criminal Appeal No. 15 of2021 & the District Court of Serengeti at Serengeti in Criminal Case No. 251 of 2018) JUMA WAMBURA.......................................................... APPLICANT Versus THE REPUBLIC........................................................ RESPONDENT

RULING 13.03.2025 & 18.03.2025 Mtulya, J.: Mr. Juma Wambura (the applicant) intends to dispute the judgment of this court in Criminal Appeal No. 15 of 2021 (the appeal) originated from the decision of the District Court of Serengeti at Serengeti (the district court) in Criminal Case No. 251 of 2018 (the case), where the applicant was arraigned for allegation of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code [Cap. 16 R.E. 2002] (the penal Code). After full hearing of the case at the district court, the applicant was convicted and sentenced to serve thirty (30) years in prison. The applicant was aggrieved by the decision of the district court in the case and had approached this court in the appeal to complain on a bundle of issues, which were declined and this court had upheld and confirmed the decision of the district court. The applicant is further intending to meet the Court of Appeal to i contest the decision of this court, but he had found himself out of statutory time of thirty (30) days to lodge a notice of intention to appeal as required by Rule 83 (2) of the Tanzania Court of Appeal Rules 2009 (as amended) (the Rules). According to the applicant, he was late to meet the stipulated time due to three (3) factors, namely: first, decline of prisons authorities to make follow-ups of his notice of intention to appeal; transfer of prisons areas of

Mugumu in Serengeti District, Musoma in Mara Region and Wami in Morogoro Region; and sickness. According to him, he is under the mandate of prisons authorities and has no any control of his actions in court. On the 13th day of March 2025, the applicant was summoned in this court to explain the indicated reasons of delay, However, he instructed Mr. Emmanuel Gervas, learned counsel to argue the reasons, whereas the respondent had preferred the legal services of Ms. Beatrice Mgumba, learned State Attorney. In his brief submission in favour of the reasons, Mr. Gervas stated that the applicant is suffering from eyes problems and he has been receiving transfer orders from one prison authority to another in Serengeti District via Musoma Municipality in Mara Region and finally at Wami Prison in Morogoro. In his opinion, such movements and sickness, which were taking their course without his control, may be considered as good reasons for enlargement of time to file 2 fresh notice of intention to appeal out of time. Finally, Mr. Gervas submitted that the applicant has been busy following up his rights in this court and that is the sign of vigilance, which may be considered as a factor in resolving applications like the instant one. However, the thinking was protested by Ms. Mgumba, who submitted that the applicant is not vigilant as he delayed for more than three (3) years in following

his actions in this court and breached Rule 83 (2) of the Rules. According to Ms. Mgumba, even the contents of the applicant's affidavit cannot be relied to resolve the application in his favour as it contains allegations without any proof. In her opinion, if this court is persuaded to grant the application, it may invite the reason of prison custody of the applicant, which has already received the directive of the Court of Appeal in the precedent of Otieno Obute v. Republic, Criminal Application No. 1 of 2011. I have perused the instant record, Rule 47 of the Rules, section 11 (1) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2022] and the decisions in Robert Wambura @ Mungine v. Republic, Misc. Criminal Application No. 44 of 2022; Samwel Sichone v. Bulebe Hamis, Civil Application No. 8 of 2015; Otieno Obute v. The Republic (supra) and Yusufu Hassan v. Republic, Criminal Application No. 50/12 of 2017), which empowers this court to resolve applications like the present one. The precedents in 3 Robert Wambura @ Mungine v. Republic (supra) and Samwel Sichone v. Bulebe Hamis (supra) show that in resolving an application, like the instant one, courts are required to scrutinize the reasons for the application and that each application depends on its peculiar circumstances. Regarding prisoners who are in * prison authorities, the precedents in Otieno Obute v. The Republic (supra)

and Yusufu Hassan v. Republic (supra), have stated that: prisoners are not free agents who can freely make follow-ups on their matters in courts. In the instant application, it is vivid and rightly observed by Ms. Mgumba, that the applicant was in prison authorities and was transferred according to the wishes of the prison's officers. In such circumstances, it is obvious that the applicant may be positively considered for leave to prefer notice of intention to appeal out of time and finally to register his complaint before the final court of authority, the Court of Appeal. In the end, and having said so, I am persuaded to grant the applicant fourteen (14) days leave to lodge the intended notice of intention to appeal to the Court of Appeal from today without any further delay. 4 Court: This Ruling was delivered in chambers under the seal of this 1 court in the presence of the applicant, Mr. Juma Wambura and his learned counsel, Mr. Emmanuel Gervas and in the presence of Ms. Beatrice Mgumba, learned £tgte Attorney for the Republic. F. H. Mt^ilya Judge 18.03.2025 5