KHAMIS NURU 222 Edited

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE SUB REGISTRY OF MANYARA

AT BABATI MISC. CRIMINAL APPLICATION NO. 18237 OF 2024 (Originating from Criminal Case No. 20 of 2023 in the District Court of Babati) KHAMIS NURU............................................... APPLICANT

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

RULING 21st August & 11th October 2024 Kahyoza, J.: Khamis Nuru was charged with the offence of unlawful possession of government trophy, convicted, and sentenced to serve a sentence of 20 years' imprisonment on 15.12.2023. He did not appeal on time, hence, he filed the current application for leave to appeal out of time. He averred in the affidavit supporting the application that he delayed to appeal because he was sick. The Republic opposed the application contending that the applicant has not adduced sufficient reason for delay. The issue is whether the applicant delayed to appeal for good cause. i Brief facts relevant to the current application is that the trial court convicted the applicant in his presence on 15.12.2023. The record shows that the applicant signed and a notice of appeal on 17.12.2023 and the prison officer forwarded the notice of appeal on 22.12.2023 but the trial court received it on 13.2.2024. The applicant filed an application for extension of time on 3.7.2024. The applicant averred in the affidavit in support of an application for extension of time that he fell sick on 5.1.2024 and attended Mrara hospital for treatment at before he was referred to KMCM hospital. The applicant's averment that he was sick was supported by affidavit of Gilbert Patrick, the doctor in charge of Babati Prison dispensary. He deposed that the applicant fell sick on 5.1.2024. He

was attended by doctors at Mrara hospital for two weeks, thereafter referred to KCMC hospital for treatment. The Republic filed an affidavit through Johnson Charles Ndibalema to oppose the application contending among other things that the applicant did not adduce any proof that he was sick treated at Mrara hospital and later by KCMC hospital. He added that the applicant did not mention the date when recovered and got discharged from KCMC hospital. 2 On the date fixed for hearing, the applicant appeared in person and he had nothing to add to his application whereas the Mr. Ndibalema, state attorney appeared for the Republic, the respondent. He submitted that the applicant did not account for days of delay or state the period he fell sick. Has Khamis Nuru adduced sufficient reason for delay? It is trite law that courts have discretion to extend time but that discretion must be judiciously exercised. Thus, it may be granted where the applicant adduces sufficient cause for the delay and not out of sympathy. See Mumelloxis Bank of Tanzania [2006] E./\ 227 and Benjamin Amon vs Republic (Criminal Application 106 of 2018) [2020] TZCA 335 (23 April 2020). The applicant's ground for extension of time is that he was sick, hence, unable to appeal on time. I am of the firm view that once a person proves that ill health prevented him to take legal action, that amounts to a good cause for

delay. See Emanuel R. Maira vs The District Executive Director of Bunda, Civil Application No. 66 of 2010 (unreported), where it was held that- 3 "Health matters in most cases are not the choice of a human being; cannot be shelved and nor can anyone be held to blame when they strike" Nevertheless, to allege that one was sick is not enough in the absence of a medical chit showing that a person was excused from duty because of sickness. This stance was taken in Varerian Fiita v. Issa Said Qanaay, Mise. Land Appeal No. 15/2020 HC at Arusha (Unreported) where the Court referred to the decision of the Court of Appeal in K.V Construction LTD v. Mwananchi Engineering Ltd & Constructions, Civil Application No. 50 of 2004 The Court of held in K.V Construction LTD (supra) that- "In the absence of medical chits showing that the advocate was excused from duty because of illness then no sufficient reasons had been shown." The Court of Appeal observed also in the case of Benjamin Amon vs R., (supra) that an applicant for extension of time to succeed on the ground of illness, the applicant must indicate that ground in his affidavit and furnish proof of illness and medical chits in relation to the period of delay. It observed- 4 "To succeed on that point, the applicant should have indicated the same in his supporting affidavit and furnish proof of illness and medical chits in relation to the

period of the delay, "(emphasis added) Khasim Nuru, the applicant, averred without proof that he was sick treated at Mrara Hospital later transferred to KCMC hospital. He did not furnish any proof that he fell sick during the period he delayed to appeal, thus, unable to appeal. It is on record that he lodged the notice of appeal to the trial court on 13.2.2024, the notice he purported to sign on 17.12.2023. This issue whether the notice of appeal was lodged within time was not raised and argued I will not determine it. However, I have raised it to alert the prison officers that they must be diligent in dealing with the prisoner. It is vital to read sections 361 and 363 of the Criminal Procedure Act, [Cap. 20 R.E.2022] (the CPA) as amended. Section 361 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 appellant- fa) has given notice to the trial court 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 5 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, 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. The law requires a prisoner to file to the trial court a notice of his intention to appeal within ten days. Unlike when the prisoner is presenting the petition of appeal which he may present to the prisoner officer, the law does not permit him to present the notice of appeal to the prison officer. Section 363 of the CPA speaks louder on this. It provides- "363. Where the appellant is in prison, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the prison, who shall thereupon forward the petition and copies to the Registrar of the High Court." The prison officer should take note the position of the law when filing the notice of appeal and when filing the petition of appeal as shown above and ensure the notice of appeal is filed to the trial court within ten days. I wish 6 to emphasis that it is not enough to timely submit the notice of appeal to the prison officer as that will not be taken to imply that the notice has been filed on time. Back to the application, as pointed above the applicant did not adduce evidence to prove that he was sick, hence, his claims remain to be mere allegations with no any evidential value. In the end, I

find that the applicant did not adduce sufficient delaying for more that the period of six months and 19 days. Consequently, I dismiss the application for want of merit. It is ordered accordingly. Dated at Babati this 11th day of October, 2024. Court: Ruling delivered in the presence of Mr. Ndibalema SA and the applicant in person. B/C Ms. Fatina Haymale (RMA) present. John R. Kahyoza, Judge 11.10.2024 7