MARTHA MABULA FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA CRIMINAL APPLICATION NO. 32695 OF 2024 MARTHA D/O MABULA …………………………………………….…… 1ST APPLICANT SIMANDO S/O ALOYCE ………………………………………………… 2ND APPLICANT

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

RULING 3 & 11/4/2025 ROBERT, J:- Before me is an application by Martha d/o Mabula and Simando s/o Aloyce, jointly referred to as the Applicants, seeking leave to file an appeal out of time against the decision of the District Court of Misungwi in Criminal Case No. 36 of 2023. The application is supported by a joint affidavit sworn by the Applicants. In their affidavit, the Applicants aver that after their conviction and sentence by the District Court on 10th October, 2023, they prepared their appeal and submitted it through the Prison Authorities for filing. However, their advocate, without adequate communication with them or with the Prison Authorities, filed Misc. Criminal Application No. 40664 of 2023, seeking extension of time to file the appeal. Records indicate that, the said 1 application was withdrawn on 6th August, 2024 following a prayer by counsel for the applicant to withdraw it with leave to refile; however, the Court granted the prayer without making any express pronouncement on whether such leave to refile was granted. Following the withdrawal, the Applicants have now lodged this present application seeking leave to file their petition of appeal out of time. At the hearing of this application, both Applicants appeared in person and prayed for the Court to adopt their affidavit and grant the application. The Respondent Republic, represented by Ms. Hellena Mabula,

learned State Attorney, strongly opposed the application. The Respondent argued that the Applicants have not advanced sufficient cause to justify the delay. It was further submitted that while the Applicants had initially filed their appeal through the Prison Authority, the subsequent filing and withdrawal of Misc. Criminal Application No. 40664 of 2023 was not accompanied by any leave to refile, and the present application was signed on 8th November, 2024, more than three months after the withdrawal. I have considered the submissions of both parties and carefully examined the affidavit and counter-affidavit filed in support and opposition of this application, respectively. 2 It is trite law that an application for extension of time is entirely in the discretion of the Court, but such discretion must be exercised judicially based on sufficient and reasonable cause being shown by the applicant. See the principles laid down in Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010 (CAT – unreported), where the Court outlined factors to be considered, including: The length of the delay; the reason for the delay; whether the applicant has accounted for the delay for each day; whether there is an arguable case on appeal; and whether there is evidence of diligence or lack of it. In the

present case, the Applicants were convicted on 10th October, 2023, and assert that they submitted their appeal through the Prison Authorities. This assertion is not disputed. However, an application for extension of time (Misc. Criminal Application No. 40664 of 2023) was later filed and withdrawn on 6th August, 2024, by their advocate. This suggests that, despite the Applicants’ own steps, their appeal was not properly lodged due to procedural mishandling on the part of their advocate. It is also observed that the present application was filed in November 2024, about three months after the withdrawal of the prior application. The 3 Applicants have not satisfactorily accounted for this delay. However, given their status as unrepresented persons in custody, and considering the potential miscarriage of justice should their right to appeal be denied purely due to an advocate's mishandling, I am inclined to invoke the principles of substantive justice. In the case of Republic v Yona Kaponda and 9 Others [1985] TLR 84, it was held that procedural technicalities should not override substantive justice, especially in criminal matters where the liberty of the subject is at stake. Accordingly, and in the interest of justice, I find it appropriate to exercise the Court’s discretion in favour of the Applicants. The application is hereby granted. The Applicants are granted leave to file their petition of appeal out of time. The intended appeal shall be filed within fourteen (14) days from the date of this ruling. It is so ordered. K.N. ROBERT

JUDGE 11/4/2025 4