laurent laurent ngonyani vs the republic 2023 tzhc 17970 15 june 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA MISC. CR. APPLICATION NO. 1 OF 2023 (Originating from Criminal Case No. 40 of2021, Songea District Court) LAURENT LAURENT NGONYANI ........... APPLICANT VERSUS THE REPUBLIC ...... RESPONDENT RULING 30/03/2023 & 15/06/2023 E. B. LUVANDA/X The Applicant above named is seeking for extension of time within which to lodge notice of intention to appeal and the petition of appeal out of time. In the affidavit in support, the Applicant deposed that on 1/3/2021 he was convicted and sentenced to life imprisonment for rape. That he failed to prepare and forward petition of appeal on time because soon after being supplied with the trial court's records he handed over to his relative so as to find legal assistance outside prison, but after a while they came back and told him that they failed to find legal assistance due to high cost, hence time to appeal expired. i In the counter affidavit, the Respondent stated that the Applicant did not disclose sufficient reasons (a good cause) for his delay and failed to account for each day of delay. In his oral argument, the Applicant submitted that after conviction and sentence to life imprisonment, his family took a copy of judgment and proceedings for filing appeal. That he did not have communication with them because he was in prison and time for appeal expired. That when his relative visited him at prison, already time had expired. In opposition Ms. Generosa Montano learned State Attorney, submitted that the Applicant did not adduce sufficient reasons for the court to extend time for him to file notice of appeal and appeal out of time. She submitted that at prison, there is a procedure of assisting prisoners to appeal and not relative as such he was capable of filing notice of appeal within time. That the Applicant was convicted on 1/3/2021, to date two years have expired, but neither in the affidavit or oral submission stated as to when his relatives visited him, he did not account on each day of delay. She cited the case of Athuman Mtundunya vs The District Crimes Officer Ruangwa, Civil Application No. 1/2018 CAT, she submitted that an affidavit of a relative is missing. She asked for the application to be refused. 2 On rejoinder, the Applicant submitted that he has only one relative, who got accident, other relatives are sick suffering on epilepsy, his parents passed away. That his family is affected, some children failed to join form one, he kneeled before the court, asking for assistance and consideration that he is sick and victim of HIV. It is to be noted that, the Applicant here in is an inmate. It is true that at prison, indeed there is a service or procedure of assisting prisoners to take necessary steps to process their appeal. To my view the assistance rendered by the prison warden is not in abrogation to rather a supplement on probono basis to what offenders ought to do on their own. The situation herein, the Applicant allege to have entrusted his relative to process appeal through a service of a lawyer. Later his relative visited him with a feed back that it was unaffordable due to high cost. Admittedly an affidavit of the alleged sibling is missing and the Applicant did not mention specific time of visitation by his sibling. However, I believe a plea for failure by relative to lodge appeal. This is because the Applicant was consistence and stick to it all along to wit in the affidavit, submission in chief and rejoinder, cementing his family set up and 3 difficulties, illness, accident, death, while the Applicant made a condonation that he was busy at prison working for his nation. Therefore, for interest of justice, I allow the Applicant to lodge notice of intention to appeal and appeal within 30 days from the date hereof. The application is granted. E.B. LUVANDA JUDGE 15/06/2023 4