JUSTINE THOBIAS GISIRI vs REPUBLIC

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

AT MUSOMA MISCELLANEOUS CRIMINAL APPLICATION NO. 22033 OF 2024 (Arising from District Court of Tarime in Criminal Case No. 56 of2023) JUSTINE THOBIAS @GISIRI................................................................. APPLICANT

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

RULING OF THE COURT 18/11/2024 & 19/11/2024 Kafanabo, J.: This is a ruling in respect of the application for an extension of time preferred by the Applicant herein with a view to secure admittance to challenging the decision of the District Court of Tarime in Criminal Case No. 56 of 2023. The substance of the Applicant's prayers in this application is as follows: 1. The Honourable Court be pleased to grant an order for an extension of time within which the Applicant may file a notice of intention to appeal and a petition of appeal out of time.

2. Any other relief/order the Court may deem fit to grant. i The application, as a matter of law, was brought by a chamber summons supported by an affidavit of the Applicant and was made under section 361(2) of the Criminal Procedure Act, Cap.

20. R.E.

2022. A brief background of the matter is that the Applicant herein was arraigned before the District Court of Tarime in Criminal Case No. 56 of 2023 on an indictment containing one count of impregnating a school girl contrary to section 60A(3) of the Education Act [Cap. 353 R.E. 2002] as amended by the Written Laws (Miscellaneous Amendment) Act No. 02 of 2016. The Applicant pleaded not guilty to the charge, hence the matter proceeded to a full trial. Upon closure of the prosecution and defence cases, the trial Magistrate was satisfied that the Republic proved her case beyond a reasonable doubt. Accordingly, the Applicant was convicted of the above- mentioned offence and was sentenced to serve thirty (30) years imprisonment. The Applicant was aggrieved by the said decision, but for reasons that will be apparent shortly, could not appeal on time, and thus this application for an extension of time. When the matter was called for hearing the Applicant herein entered an appearance in person and, on the other hand, Mr. Davis Katesigwa, learned State Attorney, entered an appearance for the Respondent. In the submissionsof the parties in respect of the application, Mr. Davis Katesigwa, the learned State Attorney, was first to submit as the Applicant requested the Republic to take a frontage in the submissions. Nevertheless, 2 the Respondent's counsel submitted that they do not object

to the application for an extension of time. In support of the application, the Applicant submitted that the court be pleased to extend time and allow him to appeal out of time as the Respondent does not object to the application. Following the parties' common stand on the application for an extension of time, this court's duty becomes less tedious but has to satisfy itself as to whether the record before the Court meets the threshold for granting the extension of time as sought by the Applicant. Under the circumstances, this Court proceeds to determine the application for an extension of time in light of the affidavit supporting the application, brief submissions by the parties, and the relevant laws. Commencing with the relevant law, section 361 of the Criminal Procedure Act, Cap 20 R.E. 2022 (hereinafter the 'CPA') provides that: 361.-(1) Subject to subsection (2), an appeal from any finding, sentence, or order referred to in section 359 shall not be entertained unless the appeiiant- (a) has given notice of his intention to appeal within ten days from the date of the finding, sentence, or order or, in the case of a sentence of corporal punishment only, within three days of the date of such sentence; and (b) has lodged his petition of appeal within forty-five days from the date of the finding, sentence, or order, 3 save that in computing the period of forty-five days the

time required for obtaining a copy of the proceedings, judgment or order appealed against shall be excluded. (2) The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed. In light of the above provision, it is clear that the Applicant is out of time and, similarly, in this application, it is not in dispute that the decision sought to be challenged was delivered on 29/11/2023. Moreover, the Applicant has stated in his affidavit that he received a copy of the judgment and proceedings of the trial Court on 14th January 2024, and he presented the record to his relative who was supposed to obtain legal assistance for purposes of preparing grounds of appeal for filing in this court. Likewise, the Applicant's affidavit supporting the Application also indicates that from that day when he handed over the documents to his relative, he lost communication with his relative because the Applicant was transferred to Butimba Prison in the Mwanza Region. Thereafter, he was transferred to the Wami Vijana Prison in the Morogoro Region. It is further deposed in the affidavit that in the course of the said transfers, he found himself out of the prescribed time within which to appeal. As alluded to herein above, the Respondent does not object to the application for extension of time and it is clear that the facts stated

in the affidavit were not controverted by the Respondent. It follows that the principles and basis for the extension of time are settled in our jurisdiction, and the Court of Appeal has, on several occasions, offered guidance on the 4 subject. In the case of Yusufu Hassan vs Republic (Criminal Application No. 50 of 2017) [2020] TZCA 37 (18 February 2020) the Court of Appeal held that: In exercising its discretion to grant an extension of time, the court considers the following crucial factors: the length of the delay, the reason of the delay and degree of prejudice that the respondent may suffer if the application is granted. It is therefore the duty of the Applicant to provide the relevant material in order for the court to exercise its discretion. As regards the length of the delay, the Applicant received copies of the judgment and proceedings on 14/01/2024 and applied for an extension of time on 5th August 2024. This means that the Applicant has delayed for just over six (06) months. The reason for the delay, as explained herein above, is that the Applicant is a prisoner, and in the said six months he has served in three different prison facilities which are located in different regions because of being transferred by the prison authorities, a fact which was not disputed by the Respondent. It is also apparent that the Respondent will not be prejudiced if this application is

granted which is demonstrated by the fact that the Respondent did not object to the application. Moreover, in this area of law in our jurisdiction, this Court is alive to the inclined practice of granting applications for extension of time where sufficient cause is shown, especially to applicants who are inmates or prisoners, as most of their actions or steps towards appeals are at the mercy of the prisons authorities. This was held by the Court of Appeal in the cases of Sospeter Lulenga v. The Republic, Criminal Appeal No. 107 of 2006 5 (Unreported), Maneno Muyombe and Another v. The Republic, Criminal Appeal No. 435 of 2016 (unreported) and Yusufu Hassan v. the Republic, Criminal Application No. 50/12 of 2017 (unreported). Besides, under the circumstances of this case, the Applicant has provided material to this court upon which to act and grant an extension of time as demonstrated herein above. The contents of the Applicant's affidavit are clear and categorical on the cause of the delay. This means that in accordance with section 361(2) of the CPA, it is a finding of this court that the Applicant has demonstrated good cause for the consideration by the court in condoning more than six (06) months of the delay, and in exercising its discretion on extending the time within which the appeal would be admitted. This position is fortified by the decisions of the Court of Appeal in

Hamis Ismail @ Zulu Vs Republic, Criminal Appeal No. 205 of 2014 (unreported), Moroga Mwita Moroga v. Republic, Criminal Appeal 181 of 2020 (unreported), and Hamisi Mahona V. R, Criminal Appeal No. 141, 2017 (unreported). In light of the foregoing, this application is meritorious and is hereby allowed. The Applicant is given thirty (30) days within which to file his notice of intention to appeal and a petition of appeal. 6 The ruling was delivered today in the presence of the Applicant and in the presence of Mr. Davis Katesigwa for the Respondent both connected through virtual court. K. I. Kafanabo Judge 19/11/2024 7