MOHAMED SWED2

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MANYARA CRIMINAL APPLICATION NO. 000035154 OF 2024 MOHAMED SW ED .................................COMPLAINANT / APPELLANT / APPLICANT VERSUS D P P ...............................................................RESPONDENT / DEFENDANT RULING KAMUZORA, J 17th & 24th March 2025 I The applicant has filed the present application under section 11 of the Appellate Jurisdiction Act [Cap 141 R. E 2022], (hereinafter referred to as the AJA), seeking for this court' be pleased to grant an extension of time to file notice of appeal and appeal out of time. The application is supported by the applicant’s affidavit but contested by the respondent through the counter affidavit deponed by Ms. Leah Vyosena, learned state attorney. Briefly as it could be gathered from the record, the applicant was aligned before the district court of Babati for one count of rape contrary to sections 130(1), (2)(a) and 131(1) of the penal code [Cap 16 R.E 2022]. After full trial, he was convicted and sentenced to 30 years’ incarceration, 12 strokes and ordered to pay one million Tanzanian shillings as compensation to the victim. He was unable to timely appeal to this court hence, he filed Misc. Criminal Application No. 21 of 2023 before this court seeking i for extension of time to file an appeal. The application was dismissed for want of merits and still did not timely prefer an appeal to the Court of Appeal. Then, the applicant preferred Criminal Application No. 33/02 before the Court of Appeal seeking for extension of time to challenge the decision of this court denying him an extension of time. The said application was struck out on 01/11/2024 for being filed pre-maturely before exhausting remedy before the High Court. He then preferred the current application before this court seeking for extension of time to appeal before the Court of Appeal. When this application was called on for hearing, the applicant appeared in person while the respondent was represented by Ms. Leah Vyosena, learned state attorney. Page. 1 Hon.. DEVOTHA KAMUZORA Arguing in support of his application, the applicant submitted that, his first application for extension of time before this court was made with intention to appeal against the decision of the district court but it was dismissed by this court. That, he intended to appeal against the decision of this court to the Court of Appeal but he was unable to appeal on time because he was in prison and he was transferred from one prison after another; from Babati to Arusha and then to Mbulu prison. He claimed that he engaged an advocate one Mr. Mackenzie but he was not trustworthy for he left with his documents and never took action. That, he decided to file an application before the Court of Appeal but he was informed that he was supposed to file the application at Manyara High court. He urged this court to consider his application and grant him an extension of time. The respondent contested the application and in reply, Ms. Vyosena submitted that, under section 363 of the Criminal Procedure Act [Cap 20 R.E 2022], a prisoner can appeal while in prison through a prison officer. She argued that, being a prisoner in itself is not a good reason for extension of time. She urged this court to disregard the applicant’s reason of being in prison for it is baseless. The learned state attorney submitted further that, the applicant could not point out as to when he was transferred from one prison to another. That, the applicant delayed for five months in taking action and was unable to account for each day of the delay as required by the law. To buttress her submission, she referred the case of Benjamin Amon Vs Republic Criminal Application No. 106 of 2018 CAT at DSM [2020 TZCA 335], As to the applicant’s arguments that he engaged an advocate who did not file the appeal on time, the learned state attorney submitted that, the applicant was unable to demonstrate any follow up made by him or any advocate. That, there is no document or affidavit that was annexed to his affidavit to support his claim that he engaged an advocate. She therefore urged this court to dismiss the application. Having gone through the parties’ rival submission and the record before me, the sole issue for determination is whether the applicant has shown good cause for granting the extension of time. The appeal before the Court of Appeal must be preceded by a notice of appeal within 30 days of the decision, in terms of Rule 68 of the Court of Appeal Rules of 2019. This application has been preferred under section 11 of the AJA which gives powers to this court to grant among other reliefs, an order for extension of time to file notice of appeal against the judgment of this court. While it is within the court’s discretion to extend time, it a requirement of the law for the applicant to advance good cause or sufficient reason for the court to exercise its discretion in extending time. In the case of Benedict Mumello v Bank of Tanzania [2006] 1 EA 227, in which the Court of Appeal referred the case of Tanga Cement Company Limited v. Jumanne D. Masangwa & another, Civil Application No. 6 of 2001 (unreported) it observed that, what amounts to good cause or sufficient cause depends on circumstance of each case. In the case Benjamin Amon v R (supra) cited by the learned state attorney, the Court of Appeal referred the factors tested in the case of Lyamuya Construction Company Ltd v. Board of Registered 2 Hon.. DEVOTHA KAMUZORA Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 and held that, “In exercising its discretion of whether or not to grant extension of j time the Court is required to consider the following factors which may not Be exhaustive, but at the moment they include, that: - (a) the applicant must account for all the period of delay; (b) the delay should not be inordinate; (c) the applicant must show diligence, and not apathy, negligence or sloppiness of the action that he intends to take; and (d) if the court feels that there are other sufficient reasons, such as existence of a point of law of sufficient importance such as the illegality of the decision sought to be challenged.” In the instant application, the applicant intends to appeal against the decision of this court in Misc. Criminal Application No. 21 of 2023 which was delivered on 23rd August, 2023. He was unable to lodge notice on appeal within 30 days prescribed by the law and upon learning that delay, he filed an application for extension of time before the Court of Appeal which was struck out for being pre-mature. He then preferred this application. He is therefore bound to account the delay from the date of the impugned decision to the date of filing an application before the Court of Appeal and the delay from the date the decision of the Court of Appeal was delivered to the date of filing the present application. I say so because, the time spent in prosecuting the application which was wrongly filed before the Court of Appeal is considered as a technical delay hence, excluded. On the delay from the date of the impugned decision to the date of filing an application before the Court of Appeal there is no record on the exact period spent by the appellant before he preferred an application before the Court of Appeal. The applicant alleged that being a lay person, he did not know what to do and instead of preferring the application for extension of time to this court, he lodged it before the Court of Appeal. Still, that is not the reason for the delay in the first place because, even at the time he lodged an application before the Court of Appeal, he was already late. He was therefore bound to state why he could not act on time before he filed an application for extension of time. In his affidavit and oral submission, he only claimed that his movement from one prison to another hindered him from filing an appeal before the Court of Appeal on time. Apart from his affidavit and oral account, there is no other evidence to justify his claim that he was transferred from one prison to another and the time for such transfer. It is also a settled position that being in prison or transferred from one prison to another is not in itself, a good reason for extension of time. The person alleging incarceration or transfer as the reason for delay must demonstrate how the same obscured him from acting on time. In the case at hand, the applicant was unable to demonstrate so. On the delay from the date of the decision of the Court of Appeal to the date of filing the present application, it is on record that, the decision of the Court of Appeal was delivered on 01/11/2024 and this application was filed in this court on 18/12/2024, after almost 38 days. I have carefully gone 3 Hon.. DEVOTHA KAMUZORA through the pleadings specifically the affidavit in support of application and discovered that, the same was signed by the applicant on 13/11/2024 almost 12 days after the application before the Court of Appeal was struck out. This shows that the applicant acted immediately as he prepared and signed the current application within 12 days but there was a delay in filing the same. After the application was signed by the applicant, there was a delay of more than 30 days and no good reason for such delay. The delay in filing after the applicant had signed the documents cannot be blamed on the applicant for there is no doubt that the applicant is serving his sentence in prison. By being incarcerated and without control in preparing and filing documents, it was the duty of the prison officer to ensure prompt filing of the applicant’s documents in court. The inaction of the prison officer in filing the application after the same was signed by the applicant suggests that, the applicant’s ignorance and incarceration became an obstacle in pursuing his right on time and the prison officer who was bound to render assistance contributed to the delay. Thus, the period of delay in filing after signing the documents is excluded for it cannot be blamed on the applicant. The period which the applicant ought to account is 12 days and the question whether such delay is reasonable. In the case of Hamis Mohamed (as the Administrator of the Estate of the late Risasi Ngwale) vs Mtumwa Moshi (as the Administered of the Estate of the late Moshi Abdallah), Civil Application No. 407/17 of 2019 (unreported), the Court of Appeal considered a period less than 30 days to be reasonable time: - "After the latter application was struck out; the applicant took hardly a month to file the present application seeking for extension of time to file an appeal. In other words, the applicant was diligent all along to file an appeal. [Emphasis added]. By preparing and signing the application 12 days after the decision was made, the applicant demonstrated that he acted diligently and promptly. The subsequent delay in filing the application was out of his powers and control. In that regard, the applicant was able to account for the delay from the date of the decision of Court of Appeal to the date of filing this application. Despite my conclusion that the applicant failed to account for the delay from the date of the impugned decision to the date of filing an application before the Court of Appeal, I am still convinced that he deserves a chance. I say so because, the circumstance in this case shows that the applicant has been struggling to pursue his right but at all times, he was late. At first, he delayed in filing an appeal before this court thus, he lodged an application for extension of time which was dismissed. He then delayed in filing an appeal to the Court of Appeal but he preferred an application for extension of time which upon being informed that it was premature, he preferred the current application. All these suggest that the applicant has demonstrated his intention to pursue his right to appeal against the decision of the district court but he has been taking the wrong move and wrong timing. The fact that the applicant signed his application documents promptly but there was a delay in filing the same draws my attention that the same inaction could have happened before beyond the applicant’s control, leading to the delay in taking .4 Hon.. DEVOTHA KAMUZORA action. This makes me to come to an inference that, being in prison in the circumstance of this case, affected the applicant’s ability to act promptly. Basing on the above discussion, I find it reasonable to accord chance to the applicant to pursue his right. Leave is therefore granted for the applicant to file notice of intention to appeal to the Court of Appeal within 30 days from the date of this ruling. Dated at THE HIGH CO URT OF TANZANIA AT M ANYARA this 24th o f March 2025 < > 6 R E G' ^ JUDGE OF THE HIGH COURT Page. 5 Hon.. DEVOTHA KAMUZORA mmmm