Ruling Mawazo Mgalla vs

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA -SUB REGISTRY

AT MBEYA MISC. CRIMINAL APPLICATION NO. 20209 OF 2024 (Originated from the Resident Magistrate Court of Mbozi at Vwawa, Criminal Case No. 58/2015) MAWAZO MGALLA…………….……….….………………….APPLICANT

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

RULING 27 August 2024 & 27 August 2024 SINDA, J.: The applicant has brought this application under section 361 (2) of the Criminal Procedure Act, Cap 20 R.E 2022. The applicant prays for the following orders: (i) That – Hon Court may be pleased to grant the applicant leave for an extension of time within which to lodge a notice of appeal and petition of appeal out of time in criminal case no. 58 of 2015. 1 (ii) That - any other relief as this Hon. Court may deem fit and just to grant. The chamber application is dully supported by an affidavit sworn by the applicant. The applicant has alleged to have been convicted for the offence of rape contrary to Section 130 (1) (2) (e) and 131 (1) of Penal Code Cap. 16 R.E 2022 (the Penal Code) and sentenced to serve thirty (30) years in jail. At the hearing, the applicant appeared in person and was unrepresented. The respondent was represented by Ms. Prosista Paul, Learned State Attorney. The applicant briefly prayed the court to adopt his reasons set forth in his affidavit. Ms. Paul did not object to the application. The applicant was imprisoned at Mbozi prison and prepared the notice of appeal and handed to the officer in charge for transmitting to the court. He was then transferred to Ruanda central prison without being supplied with a copy of judgment and the proceedings in order to prepare his petition of appeal. On 2 July 2019, the

trial court supplied him with a copy of judgment without the Proceedings. He prepared the petition of appeal and the court notified him that there was no notice of appeal for his appeal to be 2 determined by the court. He then prepared an application for leave for an extension of time to appeal out of time Misc. Criminal Application No. 14 of 2023. The application was granted and ordered to file his appeal within 45 days from the date of the ruling. He wrote a letter to the magistrate court at Mbozi to obtain a copy of the proceedings and he obtained the proceedings and a copy of the judgement on 22 May 2024. At that time, the 45 days given by the court had already expired. Thus, the failure to lodge a notice of appeal in time was not his fault and was totally beyond his control. On the other hand, the respondent opted not to file a counter Having considered the submissions of both parties and examined the grounds stated in the applicant’s affidavit, the question is whether there is any justification for this court to exercise its discretion under Section 361 (2) of the CPA. The said provision states that: “The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has lapsed” From the record, it is clear that the applicant prepared the necessary document on time, but the proceedings were not obtained on

time. 3 That being the case and considering that the applicant is currently serving time in prison, he has no control over his affairs. The filling was at the mercy of the prison authority. It has been decided in a number of cases that being in prison, the applicant loses control of the appeal process, thus amounting to sufficient cause for the delay. See: Buchumi Oscar vs. Republic, Criminal Appeal No. 295 “B” of 2011 (CAT, unreported), William Ndingu @ Ngoso vs. Republic, Criminal Application No.3 of 2014 (CAT, unreported) and Maneno Muyombe and Another vs. Republic, Criminal Appeal No. 435 of 2016. As a result, I find the applicant advanced good cause for the delay. I grant the application. The applicant is to file a notice of appeal and petition of appeal within 21 days from the date of this Ruling. Dated at Mbeya on this 27 day of August 2024. A. A. SINDA

JUDGE 4