Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA MISC. CRIMINAL APPLICATION NO. 5582 OF 2024 MOHAMEDI HASSAN CHINJOCHA..................... APPLICANT VERSUS THE REPUBLIC................................................. RESPONDENT RULING 3d & 3d April, 2025 MPAZE, J.: This is an application for an extension of time to file an appeal out of time made under section 361(2) of the Criminal Procedure Code [Cap 20 R.E 2022] (the CPA). The application is accompanied by an affidavit sworn by the applicant, Mohamedi Hassani Chinjocha. In his supporting affidavit, the applicant averred that on 7th December, 2016 he was convicted and sentenced to serve thirty (30) years imprisonment for the offence of Incest of male contrary to section 158 (1) (a) of the Penal Code [Cap 16 RE 2022] before the Resident Magistrate Court of Mtwara at Mtwara. i Dissatisfied with the conviction and sentence, he lodged a notice of intention to appeal within time through the Prison Authority Admission Office. However, before filing his petition of appeal, he escaped from Lilungu Central Prison in 2016. Upon his re-arrest in 2024, he still intended to pursue the appeal process. He further averred that, as a layman, he was unaware of the time limitation for lodging an appeal and was not informed by prison authorities. He later learned about the lapse of time through fellow prisoners. At the hearing of this application, the applicant appeared in person, while the Republic was represented by Mr. Edson Lawrence Mwapili, learned State Attorney. In support of his application, the applicant contended that his escape from prison was not intentional but was due to an unfamiliar environment and should not be held against him in determining the application. Conversely, Mr. Mwapili opposed the application, arguing that the applicant's escape does not constitute sufficient cause to warrant an extension of time. It is a settled principle of law that an application for extension of time is not granted as a matter of right but at the discretion of the court, which 2 must be exercised judicially and upon satisfaction that sufficient cause has been shown. In Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011), the Court of Appeal laid down the guiding principles for the grant of extension of time, namely that the applicant must account for all the delay; the delay should not be inordinate; the applicant must show diligence and not apathy, negligence, or sloppiness in taking action; and, if there are other sufficient reasons, such as illegality of the challenged decision, they may justify an extension. This principle aligns with section 362(1) of the CPA, which the applicant has invoked. The section provides that; 'The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed.' Interpreting this provision, the Court of Appeal in Hamisi Mahona v. R (Criminal Appeal 141 of 2017) [2021] TZCA 160 (30 April 2021) emphasized that the determining factor in granting an extension of time is whether the applicant has established good cause explaining the delay. 3 Although the term "sufficient cause" is not statutorily defined, the Court of Appeal has provided guidance on its meaning. In Said Ally Ismail v. DPP (Criminal Application No. 20 of 2015) [2017] TZCA 251 (12 July 2017), the Court cited with approval the case of Shanti v. Hindocha & Others [1973] E.A. 207, where sufficient cause was described as the more persuasive reason that the applicant can show is that the delay was not caused or contributed to by dilatory conduct on his part, but that is not the only reason. Additionally, in Henry Muyaqa v. TTCL, Civil Application No. 8 of 2011 (unreported), the Court of Appeal outlined factors that may be considered in determining sufficient cause, including the length of the delay, the reason for the delay, the likelihood of success of the intended appeal, and the degree of prejudice that the respondent may suffer if the application is granted. The key issue, therefore, is whether the applicant has shown good cause to justify the court's discretion in granting an extension of time to file a notice of appeal and an appeal out of time. The applicant's primary reason, as stated in his affidavit and oral submissions, is that he escaped from prison immediately after being convicted and sentenced to thirty years' 4 imprisonment. However, when assessed against the principles set out in the cited authorities, it is evident that the applicant has failed to account for the entire period of delay from 2016 to 2024. He merely states that he escaped due to an unfamiliar environment and now seeks an apology. This explanation does not sufficiently justify why he failed to initiate the appeal before escaping or why he did not take immediate steps upon his re-arrest in 2024. The delay of over eight years is inordinate and remains largely unexplained, except for the applicant's own actions of evading justice. The law does not favour those who deliberately frustrate the legal process. In the case of Emmanuel Malahya v. R (Criminal Application No.6 of 2016) [2018] TZCA 434 (29 August 2018), the Court of Appeal held that, a party seeking an extension of time must demonstrate that he did not sleep on his rights and that the delay was not a result of his own conduct. In this case, the applicant deliberately removed himself from the reach of justice. His failure to act for eight years cannot be excused merely by an apology. Furthermore, the applicant's escape demonstrates negligence and a lack of diligence. A party seeking an extension of time must show that he 5 was unable to act despite making reasonable efforts, rather than intentionally absconding from justice. I am mindful of the well-established principle that when a claim of illegality is raised as a ground in an application for an extension of time, it may be considered a sufficient reason, even if the applicant has not accounted for the delay. In Attorney General v. Emmanuel Maranqakisi (as Attorney of Anastansious Anaqnostou & 3 others. Civil Application No. 138 of 2019 CAT (unreported), it was emphasized that an extension of time may be granted if there is a point of illegality. However, in the present case, the applicant has not demonstrated any illegality in his conviction or sentence. Therefore, even if I were to consider this ground, it would not avail him. Given the foregoing analysis, this court finds that the applicant has failed to show sufficient cause for the delay. His escape from prison was a deliberate act to evade justice, and allowing such an application would set a dangerous precedent by encouraging convicts to abscond and later seek the court's indulgence after their re-arrest. 6 Accordingly, the application for an extension of time is hereby dismissed. It is so ordered. Dated at, Mtwara this 03rd April, 2025. M. B. Mpaze Judge delivered today in the presence of Mr. Edson Lawrence Mwapili, State Attorney for the Republic, and the applicant. M. B. Mpaze Judge 3/4/2025 7