Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA MISC CRIMINAL APPLICATION NO. 4281 OF 2024 (Arising from Criminal Case No. 665 of 2025 at the District Court of Chato) LEONARD JOSHUA LENARD………......................................... 1ST APPLICANT WINSTON SYLVESTER WINSTON………………………………….2ND APPLICANT CHACHA DAUDI CHACHA…………………………………………… 3RD APPLICANT VERSUS REPUBLIC ............................................................................... RESPONDENT RULING Date of last Order: 06/03/2025 Date of Ruling: 10/03/2025 MWAKAPEJE, J.: The applicants herein filed this application seeking an extension of time to file their notice of intention to appeal and petition of appeal out of time. The application arises from the fact that, on 8 January 2025, the applicants were convicted and sentenced to thirteen months' imprisonment after pleading guilty to the offence of unlawful possession of weapons in a National Park, contrary to section 24(1)(a) and (2) of the National Parks Act, Cap 282, as amended by the Written Laws (Miscellaneous Amendment) Act No. 11 of 2003. Aggrieved by the Page 1 of 10 sentence, they intended to appeal but were time-barred, prompting this application. In paragraphs 8 and 9 of the sporting affidavit, sworn by Mr. Otieno, it is asserted that the applicants were unable to file the notice on time due to a lack of assistance from prison officers, as all applications must be filed electronically. They contended that they needed to engage a registered advocate with access to the e-CMS case filing system and that their sentence did not include the alternative of a fine, despite the law providing for one. In response, the respondent opposed the application through a counter-affidavit, arguing that the applicants had not substantiated their claims and that their reasons for the delay were baseless. This application was argued orally. When it was called for the hearing, the applicants were represented by Mr. Vianne Mbuya, a learned Advocate, while Mr. Njiliku Mabula, a learned State Attorney, appeared for the respondent, the Republic. Mr. Mbuya submitted that at the time of judgment, the applicants were sentenced to 13 months in prison and were required to file their notice of intention to appeal within ten days. However, being incarcerated, they faced challenges in filing on time. Their attempts to seek assistance from prison authorities were unsuccessful as the responsible officer was Page 2 of 10 unavailable. Eventually, their relatives engaged an advocate, but by then, they were already 17 days late. Mr. Mbuya argued that under Article 13 of the URT Constitution, 1977, access to justice was a fundamental right, which had been curtailed due to the applicants' imprisonment. He further contended that the trial court committed an illegality by failing to consider the alternative sentence of a fine under section 24(2) of the National Park Act, Cap 282, despite the applicants being first offenders. Citing various precedents, including Tabu Fikwa v. Republic (1988) TLR 48 and Alice Nyawira @ Ndungu vs Republic (Criminal Appeal 40 of 2022) [2022] TZHC 11653 (16 August 2022), where the case of Yeremiah s/o @ Jonas Tehani vs Republic (Criminal Appeal 100 of 2017) [2020] TZCA 65 (11 March 2020) was cited, he asserted that imprisonment was justified only where no alternative sentence was provided. Additionally, he referenced Anania Clavery Betela vs Republic (Criminal Appeal No. 355 of 2017) [2020] TZCA 245 (22 May 2020) to emphasise that an accused who pleads guilty is entitled to a lenient sentence, which the trial court failed to consider. Mr. Mbuya further submitted that illegality warranted an extension of time, relying on Athumani Msigwa Lugunda vs Mikidadi Waziri (Misc. Land Appeal No. 1229 of 2024) [2025] TZHC 408 (21 Page 3 of 10 February 2025), which cited Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011). He, therefore, prayed for the application to be granted. In response, Mr. Mabula opposed the application, arguing that the court had discretion in granting an extension of time, which depended on the presence of good cause. He contended that the applicants had failed to establish good cause, as their claim of seeking assistance from prison authorities was unsubstantiated due to the absence of an affidavit from the concerned officer. Citing Sabena Techinics Dar Limited vs Michael J. Luwunzu (Civil Application 451 of 2020) [2021] TZCA 108 (14 April 2021) referring to the case of Benedict Kiwanga vs. Principal Secretary Ministry of Health, Civil Application No. 31 of 2000 (unreported), he maintained that uncorroborated statements amounted to hearsay. Mr. Mabula further argued that the applicants had failed to account for each day of their 17-day delay, as required by Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania. Regarding the alleged illegality, he asserted that section 24(2) of the National Park Act provided for three sentencing options: a fine, imprisonment, or both. The trial court had Page 4 of 10 lawfully exercised its discretion by imposing imprisonment, and there was no error warranting an extension of time. He, therefore, prayed for the application to be dismissed. In rejoinder, Mr. Mbuya maintained his submissions and noted that the State Attorney had conceded that section 24(2) provided for three sentencing options. He reiterated that where the law allowed for a fine, the sentencing court was bound to impose it before resorting to imprisonment, particularly for first offenders. He further argued that the applicants had pleaded guilty and that the nature of the offense did not warrant a mandatory custodial sentence. In the interest of justice, he urged the court to grant the extension of time. Having considered the rival submissions by the parties, this Court will consider whether the applicants have supplied sufficient cause to warrant this Court to exercise its discretion. I should on the onset point out that the grant or refusal to extend time in application like these falls within the discretionary powers of the court requested. To succeed in such applications, the applicant has to advance a good cause. In the case of Blastus Alois Mgegera vs Board of Trustees of Tanzania National Parks (Civil Appeal No. 310 of 2022) [2024] TZCA 217 (22 March 2024), it was stated that: "……………..in applications of this nature, it is trite law that grant of an application for an extension of time is entirely at the discretion of the Page 5 of 10 court This discretion, however, has to be exercised judiciously and overriding consideration is that the applicant must show good cause or sufficient cause for the inaction within the prescribed time." What good cause is, has not been defined. However, it has been left to the discretion of the Court to consider the circumstances of each case. See the cases of Hyasintha Malisa Versus John Malisa, Civil Application No. 167/01 of 2021 TZCA and the case of Henry Jalison Mwamlima vs Robert Jalison Mwamlima & Others (Civil Application No. 652/06 of 2022) [2023] TZCA 17949 (13 December 2023). Nonetheless, the criteria constituting good cause, warranting the court's discretion to extend the limitation period, have been delineated in various case laws, including but not limited to Lyamuya Construction Co. Ltd v. Board of Trustees of Young Women's Christian Association of Tanzania, (supra), Tanga Cement Company Limited v. Jumanne D. Masangwa & Another, Civil Application No. 6 of 2001, and Ludger Bernard Nyoni v. National Page 5 of 8 Housing Corporation, Civil Application No. 372/01 of 2018 (all unpublished). In the case of Lyamuya Construction Co. Ltd v. Board of Trustees of Young Women's Christian Association of Tanzania (supra), factors amounting to good cause were articulated as follows: "(i) The applicant must account for the period delayed; (ii) The delay should not be inordinate; Page 6 of 10 (iii) The applicant must show diligence and not apathy, negligence, or sloppiness in the prosecution of the action that he intends to take; (iv) If the Court feels that there are other sufficient points of law, i.e., illegality of the decision, ought to be challenged." In this instance, the impugned decision was rendered on 22 January 2025. The applicants were required to lodge their notice of intention to appeal by 1 February 2025 but failed to do so. Instead, they filed the present application on 19 February 2025. Through their affidavit and submissions by Mr. Mbuya, it is contended that the applicants intended to file the notice within the prescribed time, but the prison officer in charge was indisposed, and they did not receive the necessary assistance from prison authorities to lodge the notice on time. Second, upon seeking legal assistance, their advocate, after reviewing the documents, determined that they were already out of time, necessitating the present application. Guided by the authorities above, I should be quick to point out that the applicants delayed for 19 days to file their notice of intention to appeal. The reasons for the delay are stated to be the lack of assistance from the prison authorities and the officer responsible was indisposed. However, I am moved by this ground considering that there is no evidence proving the said allegations against the unnamed prison officer who was indisposed or the fact that the prison authority failed to assist the applicants. Further, as correctly argued by Mr Mabula, since there was the Page 7 of 10 affidavit of the said prison officer, the allegations remain hearsay which this Court cannot act upon. This position was reiterated in the case of Sabena Techincs Dar Limited vs Michael J. Luwunzu (supra)Civil Application 451 of 2020) [2021] TZCA 108 (14 April 2021) while referring to the cases of Benedict Kimwaga v. Principal Secretary Ministry of Health, Civil Application No. 31 of 2000 and NBC Ltd v. Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002 (both unreported), where it was stated that: “An affidavit which mentions another person is hearsay unless that other person swears as well" Further, there is no evidence indicating when the applicants decided to consult the advocates to assist them in filing the present application. In the absence of such evidence, what the applicants state remains hearsay. Therefore, I agree with Mr Mabula that the applicant ought to account for each day of the delay considering that it is a well-established principle that an applicant seeking an extension of time must provide a detailed and satisfactory explanation for each day of delay. Moreover, it must be emphasised that even a delay of a single day can be fatal to an application, especially where no sufficient justification is provided. This is the position set in the cases of Mwanahamisi Kiangi vs Coretha Kapingu, Civil Appeal No. 2 of 1994 (Unreported) and Hassan Bushiri v. Latifa Lukio Mashayo, Civil Application No. 3 of Page 8 of 10 2007 (Unreported) as referenced in Bruno Wenceslaus Nyalifa vs Permanent Secretary Ministry of Home Affairs & Another (Civil Appeal No. 82 of 2017) [2018] TZCA 297 (14 December 2018). In the latter it was stated that: "Delay, of even a single day, has to be accounted for; otherwise, there would be no point of having rules prescribing periods within which certain steps have to be taken." [Emphasis supplied] Regarding the alleged illegality of the impugned decision, Mr. Mbuya submitted that the applicants were sentenced to imprisonment instead of being given an option of a fine, despite having pleaded guilty and being first-time offenders. The key issue for determination is whether such an alleged irregularity constitutes an illegality warranting consideration in an application for an extension of time. It is well settled that claims of illegality in judicial decisions may justify an extension of time where the illegality is apparent on the face of the record and raises a fundamental issue of law. In the case of Jubilee Insurance Company (T) Ltd vs Mohamed Sameer Khan (Civil Application 439 of 2020) [2022] TZCA 623 (12 October 2022), while referring to the case of Lyamuya Construction Company Ltd (supra), it was stated that: "………the illegality in question must be that which raises a point of law of sufficient importance and the same must be Page 9 of 10 apparent on the face of record not one that would be discovered by a long-drawn argument or process." In the present case, considering the evidence on record, and the circumstances of the impugned decision, it is evident that a serious legal issue arises regarding whether the sentencing court improperly exercised its discretion by imposing a custodial sentence instead of a fine, warranting appellate court intervention. From the foregoing discussion, the interests of justice demand that the appellate court examine the legality of the impugned decision. This, therefore, necessitates allowing the application for an extension of time to ensure proper addressal of the matter. Consequently, I order the applicants to lodge their notice of intention to appeal within ten (10) days from the date of this Ruling and, thereafter, to file their petition of appeal within fourteen (14) days from the date of notice. It is so ordered. DATED at GEITA this 10th day of March 2025. G.V. MWAKAPEJE JUDGE Page 10 of 10