MATHIAS MKOKOTENI VERSUS THE RERULINGPUBLIC

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA MISCELLANEOUS CRIMINAL APPLICATION NO. 18098 OF 2024 (Arising from the decision of Mpwapwa District Court at Mpwapwa Criminal Case No. 43/2022) MATHIAS DAMIAN MKOKOTENI …………………....….. APPLICANT VERSUS THE REPUBLIC ………………………….…………………RESPONDENT RULING Date of last order: 04/09/2024 Date of Ruling: 11/09/2024 LONGOPA, J.: The applicant one Mathias Damian Mkokoteni was convicted in the District Court of Mpwapwa with an offence of theft contrary to section 258(1) and 268 (2) of the Penal Code, Cap 16 R.E. 2022 and sentenced to save ten (10) years imprisonment and to pay compensation of TZS 900,000/=. The applicant was dissatisfied with that decision hence he intends to challenge it by way of an appeal. However, the appeal has not been taken timely thus this application under Section 361 (2) of the Criminal Procedure Act, Cap 20 R.E 2022. In his chamber summons, the applicant prayed for:- 1|Page a) That, this Honorable court be pleased to grant leave for the applicant to file Notice of intention to appeal and petition of appeal out of time. b) That, any other orders/ relief this Honorable court deems fit to grant. The application was supported by an affidavit of the applicant which it avers as follows:- 1. That, I am the applicant in this application, thus conversant with the facts am about to depose hereunder. 2. That, I was convicted in the District Court of Mpwapwa at Mpwapwa before Hon. N.J Nasari-PRM with Criminal Case No.43 of 2022. for the offence of Cattle theft c/s 258(1) and 268 (2) of the Penal Code Cap 16 R.E 2022 and sentenced to save ten (10) years imprisonment and to pay compensation of TZS 900,000/=. 3. That, upon conviction I was admitted at Mpwapwa prison on the same date of judgment, whereas before the prison officer in charge I was expressed my intention to appeal to the High Court of (T) at Dodoma against the all decision of District Court of Mpwapwa at Mpwapwa. 2|Page 4. That, the prison officer assured to assist me fulfilling my intention, thereafter on the same day I was supplied with materials for preparation of notice of appeal and request for copy of judgment and proceeding for the purpose of appeal. 5. That, upon completion of preparation of notice of appeal and petition of appeal I handed over to the Prison Authority and assured me that the same will be submit to the proper authority within the time. 6. That, immediately after completion of filling my petition of appeal to the High Court of (T) at Dodoma which was registered as Criminal Appeal No.36 of 2022 thereafter I was called for hearing on 14th September, 2023 before Hon. H.H SULEYMAN - Judge whereby I was told that my appeal is out of time, hence dismissed. 7. That, since I am the Prisoner at Mpwapwa Prison all correspondences dealt with prisoners were passed before the Admission Office within the Prison and sent to the Court by the prison officer, thus the delay was out of my control as the prison authority assured me that the documents were sent before the court within the time while they did not take necessary action to file my appeal within the time provided. 3|Page 8. That, your Honourable Judge basing on the facts adduced above, the default to file my notice and petition of appeal within the time was delayed by the Mpwapwa Prison Authority. 9. That, due to that circumstance and for the sake of justice I prepare this application to seek leave to this Honourable Court to file notice of appeal and petition of appeal out of time. On 4th September 2024 when this application came for hearing, the applicant appeared in person fending for oneself and the respondent was represented by Ms. Victoria Njau and Mr. Francis Mwakifuna, both learned State Attorneys. The applicant adopted the affidavit in support of the application to form part of his submission. He stated that he was late to file the appeal within time as he was in custody and the proceedings and the judgment were not supplied to him timely. He obtained the same on 23/03/2023 since 28/12/2022 when he was convicted and sentenced. He prayed that this court to permit him to file an appeal out of time as he was prevented by justifiable cause. 4|Page On the other hand, the respondent argued that they had no objection to the prayer for extension of time to file an appeal out of time for the reasons contained in the affidavit supporting the application. Having heard submissions from both parties, it is pertinent for this Court to consider the submissions and contents of affidavit in light of the prayers contained in the Chamber Summons. It is through analysis of the grounds stated in the affidavit in support of the application and the oral submissions that validity of the application can be established. It is settled law in Tanzania that extension of time involves exercise of judicial discretionary powers where a sufficient cause exists. It is the sufficient cause that would empower the Court to grant or refuse granting the extension of time. For instance, in the case of Meis Industries Ltd & 2 Others vs Twiga Bankcorp (Misc. Commercial Cause No. 243 of 2015) [2016] TZHCComD 2127 (18 February 2016) (TANZLII), at page 6, the High Court noted that: It must be put clear that this court has discretion to extend time under section 14 of the Law of Limitation but such extension can only be exercised if sufficient reason has been given by an applicant. Only sufficient cause for the delay, and not sympathy, will make an application of this nature succeed. 5|Page According to the principle in this case, the main consideration for the Court to grant extension is the existence of sufficient cause. The court should consider all the circumstances of the case to find out whether there is demonstrated a sufficient cause to warrant it to exercise its powers. In John Harald Christer Abrahamsson vs Exim Bank T. Limited & Others (Civil Application No. 468/16 of 2022) [2024] TZCA 130 (27 February 2024) (TANZLII), at pages 4-5, the Court of Appeal reiterated the principle in exercising discretionary powers. It stated that: It is trite law that, extension of time is a matter of the discretion of the Court which must be exercised judiciously according to the facts of each case. See; Mwita s/o Mhere v. Republic [2005] T.L.R. 107 and Ngao Godwin Losero V. Julius Mwarabu, Civil Application No. 10 of 2015 (unreported). It is also common that, in applications for extension of time, the Court is required to consider whether or not sufficient cause for delay has been shown to warrant the exercise its discretion to grant the extension of time. There is, however, no definition of what amounts to “sufficient cause” but in determining whether in a particular case, sufficient cause has been established or not, a number of factors have to be taken into consideration depending on include; whether the 6|Page applicant was diligent, reasons for the delay, the length of the delay, the degree of prejudice to the respondent if time is extended, whether there is a point of law or the illegality or otherwise of the impugned decision. According to Paragraph 7 of the affidavit, the applicant stated that upon being convicted and sentenced to serve imprisonment, he immediately commenced serving custodial sentence at Mpwapwa Prison. He narrated that attempts were made to appeal by initiating the necessary appealing processes and handed over all the documentations to prison authorities thus the appeal process was not within his control. He entrusted the same to prison authorities to handle the process of filing necessary documents but the authorities failed to do so timely. This ground seems to be merited. It is clear that the applicant had no control whatsoever on the filing of relevant notice of intention to appeal and filing petition of appeal before the court as he was in custody. In the circumstances, it appears to be in the best interest of justice for the time to be extended and the applicant be allowed to file the same within time. I have considered the affidavit supporting the application and submissions from both parties. The respondent is not objecting to the grant of this application for extension of time to file an appeal out of time. 7|Page This court is empowered to extend time once there is a good cause for it to enlarge time and admit an appeal even though it is out of time. The Court does so on proof of sufficient or good cause to warrant it to grant extension of time from the applicant. Being in custody reveals evidently that applicant was prevented by a sufficient cause which resulted into failure to file necessary documents timely. In the case of Dar es Salaam City Council vs S. Group Security Co. Ltd (Civil Application 234 of 2015) [2016] TZCA 641 (11 May 2016), the Court of Appeal stated that: As a matter of general principle, it is always in the discretion of this Court to grant extension of time under Rule 10 of the Rules. But the stance which this Court has consistently taken is that in an application for extension of time, the applicant has to account for every day of the delay. According to the decision of the Court, extension of time is a matter of discretion of a court. For a court to properly exercise such powers, it is upon the applicant to satisfy to the court that sufficient cause exists by providing an explanation for every day of delay. The affidavit of the applicant and submission shows that the applicant made some efforts in appealing and he did not sleep on his right after the conviction and sentence as he expressed his intention to 8|Page appeal to the High Court against the decision of District Court of Mpwapwa. It is argued that two main factors prevented the filing of the appeal timely. First, he spent quite sometimes but the proceedings and judgment were not supplied to him timely as he was in prison. Second, the prison authorities did not file and register his petition of appeal at the High Court of Tanzania Dodoma Sub Registry timely as he was a convict serving his sentence in Prison. This is a sufficient cause for the court to consider. In the case of Moroga Mwita Moroga vs Republic (Criminal Appeal 181 of 2020) [2022] TZCA 340 (14 June 2022), the Court of Appeal of Tanzania emphasized that: Section 361(2) of CPA grants jurisdiction to the High Court to grant application for extension of time where good cause is expounded heedless of the competence of the intended appeal. The applicant has demonstrated sufficient cause that led to delay to take necessary action to appeal against the decision. It was beyond applicant’s control. Indeed, the applicant was caught in what is referred to as web of technicalities as per principle in the case of Tanduga Mustafa Nyakimwe & Others vs Kigoma/Ujiji Municipal Council & Another (Civil Application No. 932 of 2023) [2024] TZCA 507 (27 June 2024), at page 11, the Court of Appeal of Tanzania stated that: 9|Page It is also accepted and settled that where a party is shown to have diligently taken steps only to be caught up in web of technicalities, a sufficient cause is generally taken to have existed for the delay. Technical delay has been pardoned by this Court as well. I have nothing to doubt on the contents of the applicant’s affidavit with regard to cause of delay to timely prefer an appeal. The same was neither objected by the respondent to this application. It is prudent to avail the applicant the opportunity to be heard by the High Court of Tanzania on appeal. It is my considered view that tis application has merit and this court finds it proper for the applicant to be granted an extension of time to appeal out of time. The application is granted. The applicant should file his appeal including relevant notice of intention to appeal within forty-five (45) days from the date of this ruling. It is so ordered. DATED and DELIVERED at Dodoma this 11th day of September 2024. E.E. LONGOPA JUDGE 11/09/2024. 10 | P a g e