LUHENDE CHARLES SINA V THE REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY ATTABORA MISCELLANEOUS CRIMINAL APPLICATION NO. 7714 OF 2025 (Arising from Criminal Case No. 23 of 2023 of District Court of Sikonge at Sikonge) LUHENDE S/O CHARLES alias SINA........................................ APPLICANT VERSUS THE REPUBLIC........... ................................ RESPONDENT RULING 10th April 2025 MIRINDO, J.: [1] Luhende Charles alias Sina is applying for leave to appeal out of time against the decision of Sikonge District Court of 12th April 2024. In his supporting affidavit he has set out the following grounds for the delay: (i) immediately after being sentenced he was held at Sikonge Police Station for thirteen days pending being brought to Uyui Central Prison, (ii) upon his arrival at Uyui Central Prison he tried to lodge his notice of intention to appeal but prison officers in the Admission Office informed him that he was late and he needed to apply for extension of time. These are the factors that cause his delay in appealing and applying for extension of time. The application was resisted by the respondent Republic in their counter-affidavit and pleaded that the applicant should prove these facts. 1 [2] At the hearing of the application, the applicant, Luhende Charles alias Sina, was unrepresented. He reiterates those facts and pleaded with this Court to grant the application bearing in mind that he is a prisoner who appeal process is at the mercy of prison officers. The respondent Republic was represented by Ms. Suzan Barnabas, learned State Attorney. She opposed the application and specifically drew the attention of the Court to the fact that the applicant has not accounted for the delay from when he arrived at Uyui Central Prison on 24th April 2024 to when the application was filed in this Court on 31st March 2025. She noted that the account provided by the applicant has not been proved. The learned State Attorney referred to the case of Lyamuya Construction Company Ltd vs Board of Registered Trustee of Young Women's Christian Association of Tanzania (Civil Application No. 2 of 2010) [2011] TZCA 513 where basic factors for granting extension of time were restated and she concluded that the applicant has not account for each day of the delay. [3] The vulnerability of a prisoner who applies for extension of time has been commented upon by the Court of Appeal in several cases. The chances of delays in transferring prisoners affecting appeal process was accepted as a good cause for extension of time in was accepted in Mwantandu EliahvR, Criminal Appeal 477 of 2007, Court of Appeal of Tanzania at Dodoma (2009) and Nzeyimana s/o Zeno v Republic (Criminal Appeal 458 of 2007) [2013] TZCA 380 (19 April 2013). [4] In an ideal case, a prisoner may secure additional affidavit from a prisoner officer to corroborate facts in his supporting affidavit but the Court of Appeal has held in Sospeter Lulenga v R, Criminal Appeal 108 of 2006, Court of Appeal of Tanzania at Dodoma (2007) and Alfred Chinga v R, Criminal Appeal 73 of 2008, Court of Appeal of 2 Tanzania at Mbeya (2011) that, for different reasons, it is not easy for prisoners to secure affidavits from prisoner officers. [5] It is also demanding too much for a prisoner to speed up the appeal once he communicated to them his intention to appeal on 24th April 2024. In Sostenes s/o Nyazagiro v Republic (Criminal Appeal 12 of 2013) [2013] TZCA 434 (7 May 2013), a prisoner applied for extension of time to appeal two years subsequent to his conviction and sentence. The High Court dismissed the application because there was no proof of the prisoner submitting his notice of intention to appeal and petition of appeal for typing. The High Court further held that there was no proof from prison authorities that there were problems with printing facilities. These findings were set aside on appeal to the Court of Appeal. The Court of Appeal held that the High Court was: ...stretching credulity too far. The appellant was not running the Prison system. Rather, the Prison system was running him. [6] It follows that the facts provided in the instant application by Luhende s/o Charles alias Sina constitute good cause for extension of time. [7] Accordingly, I grant the applicant an extension of time to lodge his notice of intention to appeal within ten days from today and then file his petition of appeal within forty-five days, in the High Court. The prison officers at Uyui Central Prison should assume the responsibility to process the appeal according to law. Court: Ruling delivered in chambers this 10th April 2025 in the presence of the Applicant in person and in the presence of Ms. Suzan Barnabas, State Attorney for the respondent Republic. B/Clerk: Omary Mkongo (SRMA) present. F.M. MlRINDO JUDGE 10/4/2025 4