MAGAKA RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA MISC. CRIMINAL APPLICATION NO. 15721 OF 2024 (Arising from Criminal Case No.93 of 2021, Maswa District Court) MAGAKA CHARLES .....................................................APPLICANT

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

RULING 22nd &23rd July 2024. F.H. MAHIMBALI, J This ruling is in respect of an application for extension of time to file notice of appeal and the appeal itself out of time. The applicant intends to challenge the conviction and sentence meted against him on the charge of rape and accordingly sentenced to suffer 30 years’ imprisonment. The application is made by chamber summons retrieved under section 361(2) of the Criminal Procedure Act and Article 13 (6) (a) of the Constitution of 1 the United Republic of Tanzania and the same is accompanied by the applicant’s affidavit. During the hearing of the application, the appellant appeared in person and unrepresented while Mr. Kadata learned state attorney appeared on behalf of the respondent/republic. Arguing for the application, the applicant submitted that this is an application for extension of time to file appeal out of time. He was convicted on 30th August 2022. He claims, he lodged his notice of appeal timely on 1st Sept 2022. He wondered to be informed that his appeal was filed out of time as per law when he was before this court (Mwakahesya, J). Since it was beyond his control, he prayed his grounds in the affidavit be adopted by this Court for the consideration of application. On the side of the respondent Mr. Kadata resisted the application for want of sufficient reasons pursuant to section 361(2) of the CPA. The records are

clear that the applicant was convicted on 30th August 2022, but he filed his notice of appeal on 17th Nov. 2022, this is more than 60 days which is contrary to section 361(1) a of the CPA. Moreover, the applicant has failed to account for each day of delay for him to file the said notice of appeal. Lastly, though an appeal is a constitutional right, 2 however Mr. Kadata argued that, the same must be done within the ambit of the law. Since it is the public policy that litigation must come to an end, there is no good justification as to why this application should be allowed now after such expiration of much time. In the absence of accounting each day of delay, this current application is unmeritorious, thus, ought to be dismissed in its entirety. Resting his submission, the Applicant prayed that this application be granted as all that had transpired in between was beyond his control but under prison management, he being an inmate. At the closer of the submission by the parties, this court took cognizance that the respondent did not file counter affidavit to oppose the applicant’s application. In the circumstances, whether the respondent had a right of audience and submission? Mr. Kadata’s reply was that, he has just opposed this application by submission. He has not filed counter affidavit. To him he thinks it serves the same purpose. Thus, he can oppose the application either

by an affidavit opposing it or by oral submission. Before I endeavor to determine the merit or demerit of the application, I find it imperative to address this concern as raised by this 3 Court that the respondent having faile to filed the counter affidavit, whether this application went uncontested. I think this point need not detain me much. It is the law, that failure of the respondent to file a counter affidavit does render the application uncontested unless it is a contest on a point of law. Bearing in mind that affidavit is evidence, it cannot be opposed by a mere submission from the bar but by a counter affidavit i.e by another evidence. The omission in my humble view denies the respondent with the right to respond on factual issues but issues of law only. However, this position doses not release the applicant from discharging his duty to argue or prove his case. This stance was also taken by the court in the case of Fatuma Ally Mohamed Vs. Mohamed Salehe, Misc. Land Application No. 365 of 2019 (HC-unreported) which decision I am subscribing to, where the court held. “The position of the law on failure to file a counter affidavit is settled. The respondent is deemed to have not contested on the factuality of the affidavit. I agree with Mr. Njama that, omission to file a counter affidavit does not render the application uncontested as to deny the respondent a right

to address the Court on merit or otherwise of the application. Neither does it release the applicant with a duty to argue his 4 case. This position was clearly stated in among other, in Finn vin Wurden Perterson and Another Vs. Arusha District Council, Civil Application No. 562/17 of 2017’’. The effect of failure to file counter affidavit, the respondents are precluded to challenge matters of fact and they are limited to matters of law, see also the case of Finn Von Waurden Petersen and Another vs Arusha District Council [2020] TZCA 167 (Tanzlii). Since there is no any point of law which was raised by the Respondent Counsel, therefore, had nothing to remain in the record to oppose the application on matters of fact. In light of the above deliberation and position of the law, I hold in this matter the respondent having failed to file a counter affidavit was not entitled to submit on factual issues of this application except on matters of law only. Thus, all that was submitted is legally useless. Acquainted with the above principles, back to the case at hand, the question this court is invited for deliberation is whether the applicant’s application is brought with sufficient cause. Scanning the applicant’s affidavit, he argues this court that he failed to file appeal on time as he was not at liberty to comply with the law. 5 According to him he prepared his notice of appeal

within the prescribed time and surrendered it to the relevant authority (prison). Since he was an inmate, it was out of his control for the further procession of his appeal to the court as per law. It was astonishing that when was before this court for the trial of his appeal (Mwakahesya J), he was informed that he filed his appeal out of time. To him it was an astonishing and a surprise. Hence this application. I have given a due consideration the applicant’s submissions. As a matter of principle, it is exclusively in the discretion of the court whether to grant or refuse an application for extension of time as stated in section 361(2) of the CPA, Cap 20 R.E 2022. The said provision confers this Court with discretion in the following terms: "The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed." In exercising the discretionary powers vested to this court by the provisions of section 361(2) of the CPA, the vital question to be answered is whether the applicant has advanced good cause for his delay to lodge his notice and petition of appeal out of time. 6 Now, being an inmate, it is obvious that the applicant could not conduct his affairs in the same manner as a free citizen would do. Given such circumstances, it is my view that, a special consideration ought to be accorded to the applicant's

circumstances. As stated under oath in his affidavit. Based on the foregoing analysis, the applicant's prayer for extension of time has shown good cause bearing in mind that he is in prison. A similar reasoning was observed in Rhobi S/o Kitang'ta Chacha vs. Republic, Criminal Application No. 58 of 2023, where learned Judge cited the case of Maneno Muyombe & Another vs. Republic, Criminal Appeal No.435 of 2016 (unreported) where it was stated that: ''Being inmates serving time in prison, the appellants invariably had no control over their affairs and that they were necessarily at the mercy of the Officer-in Charge of their prison, as it were. In this regard, it was to expect too much from them." The same principle was advanced in Maneno Muyombe & Another vs. Republic, (supra), where the court stated that: 7 “In view of the wording of section 361 (2) (formerly Section 361 (b)), all that is required of the appellant is to show ''good cause" before the High Court can invoke its discretionary powers to extend time." In consideration of the reasons adduced by the applicant in his affidavit, suffices that the applicant has shown a good cause, thus, the answer to the question, whether the applicant has advanced good cause for his delay to lodge his petition of appeal out of time is answered in the affirmative. In consequence, the application is allowed. The applicant is granted leave to lodge notice of appeal within ten days and petition of appeal thereto within thirty days from the date of delivery of this ruling. It is so ordered. DATED at SHINYANGA this 23rd day of July, 2024. F.H. Mahimbali Judge. 8