KYANGYE PIUS RULING 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) Misc. CRIMINAL APPLICATION No. 2455 OF 2025 (Arising from the District Court of Musoma at Musoma in Criminal Case No. 58 of2020) KYANGYE PIUS........................................................... APPLICANT Versus THE DIRECTOR OF PUBLIC PROSECUTIONS.......................................................... RESPONDENT RULING 17.02.2025 & 17.02.2025 Mtulya, J.l The applicant in instant application, Mr. Kyangye Pius, was arraigned before the District Court of Musoma at Musoma (the district court) in Criminal Case No. 58 of 2020 (the case) for allegation of unnatural offence contrary to section 154 (1) (a) of the Penal Code [Cap. 16 R.E. 2022] (the Penal Code). At the conclusion of the case, on 5th October 2021, the applicant was found guilty of the allegation and was sentenced to thirty (30) years imprisonment. The applicant intends to protest the judgment of the district court in the case However, he found himself out of statutory time of filing notice of intention to appeal and appeal in this court. The i applicant then moved this court under section 361 (2) of the Criminal Procedure Act [Cap. 20 R.E. 2022] (the Act) praying for enlargement of time to file notice and appeal out of time. The applicant was summoned in this court today, via teleconference attached in this court and Kwitanga Prison in Kigoma Region, to explain reasons of the delay. According to him, after the decision of the district court in the case, he was placed at Musoma Prison custody and lodged a notice of intention to appeal in this court within time via prison authorities, but he was transferred from Musoma Prison to Butimba Prison in Mwanza Region and had finally found himself at Kwitanga Prison in Kigoma. In his opinion, the transfers from one prison authority to another had affected his follow-ups of the matter under the authority of the prison authorities. The applicant also produced a reason of sickness alleging that the conviction in the case at the district court had brought him shocks leading to psychological problems. The submission and prayer of the applicant was not protested by Ms. Happiness Machage, learned State Attorney, who had appeared for the respondent. According to her, the applicant has produced two (2) reasons in support of his application, but had declined to attach necessary materials in proof of his allegations. However, Ms. 2 Machage supported the application for reasons of interest of justice and right to be heard. According to her, the applicant may be granted leave to lodge the intended notice and appeal out of time so that his complaints in the decision of the district court in the case can be heard on merit of the matter. The law regulating enlargement of time to lodge actions in this court is enacted in section 361 (2) of the Act. The enactment provides, in brief, that: The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in the section has elapsed. [Emphasis supplied] This court and Court of Appeal (the Court) have interpreted the section to empower this court a discretionary mandate in resolving applications for enlargement of time (see: Robert Wambura @ Mungine v. Republic, Misc. Criminal Application No. 44 of 2022 and Samwel Sichone v. Bulebe Hamis, Civil Application No. 8 of 2015). The discretionary mandate of this court depends on the materials presented before it by applicants and each case is determined upon its own peculiar facts (see: NBC Limited & Another v. Bruno Vitus Swalo, Civil Application No. 139 of 2019, Richard Mbwana v. Joseph Mang'enya, Misc. 3 Land Case Application No. 2 of 2021, Republic v. Ramadhani Mohamed Chambali, Criminal Sessions Case No. 11 of 2020). In the instant application, the applicant has produced two (2) reasons of delay, namely: first, allegation of transfer of prison authorities in Musoma, Mwanza and Kigoma; and second, allegation of psychological problems. The two reasons are mere allegation without any proof. However, the application was not protested by the respondent for reasons of interest of justice and right to be heard. Again, today the applicant was connected and heard via teleconference attached in this court and Kwitanga Prison in Kigoma Region and his case was resolved at the district court at Musoma in Mara Region, which is obvious that the applicant was transferred from one prison authority to another. The record also shows that the applicant was sentenced to thirty (30) years imprisonment and the possibility of psychological shocks cannot be deleted in entirety. In my considered opinion, the applicant is vigilant in attempting to lodge his complaint in this court to cherish the right of appeal and be heard at the appellate level of the district court (see: The Registered Trustee of the Evangelical Assemblies of God (T) (EAGT) v. Reverend Dr. John Mahene, Civil Application 4 No. 518/4 of 2017 and NBC Limited & Another v. Bruno Vitus Swalo (supra). I am conscious that applicants in prisons authorities who receive transfers from one prison authority to another, may be given special consideration (see: Otieno Obute v. The Republic, Criminal Application No.l of 2011 and Yusufu Hassan v. Republic, Criminal Application No. 50/12 of 2017). This court has been following the course, unless there are good reasons to resolve applications to the contrary (see: Mtatiro Macha Chacha v. Republic, Criminal Application No. 19730 of 2024; Gasaya Bwana @ Chacha v. Republic, Misc. Criminal Application No. 22 of 2022; and Juma Moroka Masyora v. Republic, Misc. Criminal Application No. 23 of 2022). In the present circumstances, the applicant has shown vigilance in following his action in this court and produced good reasons in support of the application and this court is persuaded to grant the application. I do so, owing to the directives and guidance borrowed from our superior court that: prisoners are not free agents who can freely make follow-ups on their matters and thus [granting] applications for extension of time [is obvious] (see: Yusufu Hassan v. Republic (supra), at page 7). The thinking had received the support of the same Court in the case of Otieno Obute v. The Republic (supra), which thought that: 5 As a prisoner, his rights and responsibilities are restricted. Therefore, he did what he could do. He may have been let down by reasons beyond his means... Having the thinking of the Court and two (2) indicated reasons produced by the applicant, I am persuaded to grant the applicant ten (10) days leave to lodge a notice of intention to appeal and forty-five (45) days to prefer the intended appeal in this court without any further delay. F. H. I^ltulya Judge 17.02.2025 This Ruling was delivered in chambers under the seal of this court in the presence of the applicant, Mr. Kyangye Pius via teleconference attached in Kwitanga Prison and this court and in the presence of Ms. Happiness Machage, learned State Attorney for the Republic. F. H. Hjltulya, Judge 17.02.2025 6