MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY

AT DAR ES SALAAM MISCELLANEOUS CRIMINAL APPLICATION NO. 2706 OF 2025 (Originating from the judgment of District Court of Bagamoyo in Criminal Case No. 237 of 2022)

BETWEEN MRISHO HODARI KENYA…………………………………………………... APPLICANT

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

RULING Date of last order: 18/02/2025 Date of ruling: 18/02/2025 A.A. MBAGWA J. This is an application for the extension of time within which to file an appeal against the conviction entered, and sentence imposed by the trial District Court of Bagamoyo. The applicant has moved the Court by way of chamber summons in terms of the provisions of Section 361(2) of the Criminal Procedure Act. The applicant prays for the following orders: 1 1. That this Court may be pleased to grant leave for extension of time within which the applicant may file an appeal out of time.

2. Any other relief(s) that this Court deems fit and equitable to grant. The application is backed up by the affidavit sworn by the applicant. It is deposed that the applicant was tried and convicted of rape contrary to Sections 130(1)(2)(e) and 131(1) of the Penal Code, and impregnating a school girl contrary to Section 60A of the Education Act by the trial Court in Criminal Case No. 237 of 2022. Consequently, he was sentenced to thirty (30) years imprisonment for each count. The judgment was delivered on 7th November 2023. The applicant was not amused by both conviction and sentences hence on 9th November 2023 lodged a notice of appeal through Prison administration of Ubena. However, before he was supplied with the copies of proceedings and judgment, on 20th November 2023 he was transferred to Ukonga prison hence a predicament to pursue his appeal. The applicant further states that while at Ukonga prison, he was on 12th July 2024 availed with the copies of the proceedings and judgment. As such, on 25th July 2024 he lodged the petition of appeal through prison administration. 2 Nonetheless, to his dismay, after frequent follow-ups on his appeal, he was notified that the appeal was not successfully admitted in the system. As bad luck would have, by the time he was informed of unsuccessful admission of his appeal, the prescribed time for lodging an appeal had lapsed. He thus had

no other option than to bring this application. When the matter was called on, the applicant appeared in person whilst the respondent Republic was represented by Ms. Gladness Mchami, learned Senior State Attorney. Ms. Mchami, at the outset, informed the Court that she had gone through the applicant’s affidavit and she was at one with the applicant. She clarified that it was for this reason, the respondent did not file a counter affidavit to contest the application. On my part, I have scanned the applicant’s affidavit together with the accompanying documents. I have glanced on the notice of appeal which the applicant allegedly lodged with administration of Ubena Prison. The same is dated 8th November 2023. However, there is no proof that the same was submitted to prison administration and later lodged in Court. Nonetheless, 3 considering the severity of the sentence the applicant is serving and alive to the underpinned constitutional right of appeal, I am convinced that the applicant has sufficient grounds to warrant extension of time. In the case of Regional Manager, Tanroads Kagera vs. Ruaha Concrete Co. Ltd, Civil Application No. 96 of 2007, CAT at Dar Es Salaam, it was held that there is no hard and fast rule as to what constitutes a good cause for grant of extension of time but rather the grounds should be looked at by considering all the obtaining circumstances in each

particular case. In this case, I am satisfied that the applicant’s delay in filing the appeal was caused by sufficient grounds. It is against this backdrop I am inclined that the application is meritorious and for that reason I allow it. The applicant is therefore given thirty (30) days from the date of this ruling to file a notice of intention to appeal and petition of appeal. It is so ordered. The right of appeal is explained. 4 Dated at Dar es Salaam this 18th day of February 2025. A.A. Mbagwa

JUDGE 18/02/2025 Court: The ruling has been delivered in the presence of Ms. Gladness Mchami, learned Senior State Attorney for the Republic, and the applicant this 18th day of February 2025. A.A. Mbagwa

JUDGE 18/02/2025 5