KWATLEMA KEA 222 Edited

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

AT BABATI MISC. CRIMINAL APPLICATION NO. 18614 OF 2024 (Originating from Criminal Case No. 22 of 2023 before Mbulu District Court) KWATLEMA KEA............................................................ APPLICANT

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

RULING 4th November & 2nd December, 2024 KAMUZORA, J. This is an application for extension of time brought under section 361(2) and 392A (2) of the Criminal Procedure Act [Cap. 20 R.E 2022], (the CPA). The application is supported by an affidavit sworn by the Applicant and the affidavit of legal officer of Babati prison. From the two affidavits, the reason was e-filing system break down and delay in updating the case after decision thus, could not give a room to register an appeal. The Respondent filed counter affidavit and generally contested the application. On the date scheduled for hearing of application, the Applicant appeared in person while the Respondent was represented by Ms. Leah Vyosena, learned State Attorney. Page 1 of 6 When called to argue his application, the Applicant simply submitted that the delay was caused by e-filing system. That, he signed the appeal on time, within 45 days but it was registered after expiry of time for the prison legal officer was unable to file it in the system. He therefore prayed for extension of time so that he could file his appeal. In reply, Ms. Leah Vyosena opposed the application on the ground that the reason advanced by the applicant does not suffice for extension of time. That, being in prison is not a good reason for the delay for the prison officer was responsible to ensure the appeal was filed on time as required by section

363 of the CPA. She also referred the case of Isack Kapesa Vs. Republic, Criminal Application No. 10 of 2022 [2022] HC 640 at Sumbawanga where it was held that being a prisoner is not a good ground for delay in filing the appeal and that, the prison officer is duty bound to file the appeal on time. On the argument that there was challenge in e-case management system, she submitted that the applicant was unable to state how and when he made follow up in court to verify the challenge in the system. She argued that the delay was for almost three months and the applicant was unable to account if the system had challenges for the whole period of three months. She referred the case of Benjamin Amon Vs. Republic, Criminal Application No. 106 of 2018, where Court of Appeal Page 2 of 6 at Dar es salaam [2020] TZCA, 335 at page 8 held that the applicant has to account for each day of delay. She maintained that the applicant's reasons are baseless therefore, prayed for the application to be dismissed In a brief rejoinder, the applicant added that he was not aware if the appeal was not registered for it was initiated by Mbulu prison. Upon his transfer to Babati prison he was informed by the prison officer at Babati that his appeal was not filed and made follow to file an appeal. The provision of section 361 (2) of the CPA cited by the Applicant reads; 361 (2) The High Court may, for good

cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed. [Emphasis added]. The question is whether the applicant has shown good cause for extension of time. Good cause has been defined in number of cases. See, the case of Lyamuya Construction Company Limited Vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (Unreported) and the case of Benjamin Amon Vs. R (supra) cited by the learned State Attorney. In the latter case, the Court of Appeal reiterated its prior set factors for consideration on whether good cause has been shown; i. The Applicant must account for each day of the delay. Page 3 of 6 ii. The delay must not be inordinate. Hi. The Applicant must show diligence and not apathy, negligence or sloppiness of action that he intends to take. iv. If the court feels that there are other sufficient reasons such as existence ofpoint of law ofsufficient importance, such as illegality of the decision sought to be challenged. In this application, the Applicant filed a notice of intention to appeal right on time but was unable to file an appeal on time thus his appeal was struck out for being time barred. From the two affidavits supporting the application, the reasons advanced for delay were that, there was unstable e-filing system and failure of the magistrate to

update the case after the decision was made. In his affidavit, the prison officer of Babati claimed That, at first, there was system break down but after it stabilized, he could not lodge an appeal as the case was not updated in the system to read as decided. That, he made follow up to Mbulu where the case originated for them to update the system but due to the system challenges, the same was not updated on time. The record shows that, the decision of the district court was made on 05/02/2024 and the appellant lodged a notice of appeal on 13/02/2024 right within time. The petition of appeal which was filed before this court Page 4 of 6 but struck out shows that it was prepared and signed by the applicant on 19/02/2024 but the same was filed in the system on 26/05/2024. It is true that, it took the appellant more than three months before filing an appeal before this court but such delay was well explained in the two affidavits filed in support of application. Although the applicant was unable to annex any evidence on the system failure, his account that an appeal could not be registered in respect of a pending case was vividly sound. E-filing system is built in a way that, an appeal can be registered only when the decision is entered and the case updated to read as decided. If at all there was a delay in updating the case after its finalization, it becomes obvious that the

system could not open a window to lodge an appeal for the case which was reading as pending. It was argued by the learned State Attorney that the applicant was unable to demonstrate as to when and how he made follow up over the system failure. While I agree with such argument that there is doubt as to when and how the applicant or prison officer made follow up for the updates in the system, I am reminded of the circumstance that the applicant being in prison could not personally access the system thus, he depended much on the assistance from the prison officer. Still, I see no reason to doubt the facts deponed by the prison officer that the case was still reading as pending and he could not file an appeal on time. In the Page 5 of 6 circumstance like the present one, I chose to resolve the doubts in favour of the applicant because, unlike the respondent whom the hearing of an appeal does not affect its right, the applicant will be prejudiced if his appeal is not heard considering that he stands serving grave sentence of life imprisonment. In considering the circumstances of this case, I am satisfied that there is good reason for this court to extend time. I therefore extend time for the applicant to file an appeal within 21 days from the date of this ruling. The application is therefore granted. DATED at BABATI this 2nd day of December, 2024. d. c: UZORA

JUDGE Page 6 of 6