MISC

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY

AT MUSOMA MISC. CRIMINAL APPLICATION NO. 000025777 OF 2024 REF NO. 202409092000025777 (Originating from Criminal Case No. 87 of2023 at Resident Magistrate's Court of Musoma at Musoma}

BETWEEN MSAFIRI MORIS NYAKUTWI........... ................................ APPLICANT

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

RULING 13th 8119th September, 2024 M. L. KO MBA, J. This is second application for extension of time from this applicant, Msafiri Moris. The applicant still has an intention to appeal out of time against the decision of Resident Magistrate's Court of Musoma at Musoma in Criminal Case No. 87 of 2023 regardless that he lost 30 days which he earned via Misc Application with reference No. 202405292000014457 on 10th June 2024. The application is premised under section 361 (2) of the Criminal Procedure Code [CAP 20. R.E 2019] and section 14 (1) of the Law of Limitation Act [CAP 89 R.E 2019]. An affidavit sworn on 02/09/2024 by the applicant, Msafiri Page 1 of 7 Moris Nyakutwi was enclosed together to support the applicant's application. The respondent filed counter affidavit to challenge the applicant's application. In summarily, the applicant herein was arraigned before the Resident Magistrate's Court of Musoma and convicted with an offence of incest by male contrary to Section 158 (1) (a) of the Penal Code [CAP 16 R.E 2022]. He was then sentenced to 30 years imprisonment. As he was not pleased by the decision of the Resident Magistrate's Court of Musoma, the applicant lodged an appeal before this court. But, due to unfamiliarity with eCase Management System of Tanzania Judiciary which was currently in operation, the applicant, with aid of prison officer filed his appeal in wrong

admission system which resulted his appeal to be struck out with an order to re-file the same on proper channel. Since the applicant discovered that he is out of prescribed time to lodge his appeal in accordance with the law, he applied and was granted 30 days to lodge his appeal. From his affidavit, he lost 30 days granted in June 2024 and decided to file this application. Page 2 of 7 During the hearing of this appeal, the applicant appeared in person, fended for himself whilst on the other hand Ms. Agma Haule, State Attorney, represented the respondent. Applicant was very specific in his submission that he prayed for time as the previous time granted lost while trying to upload documents in the system. He explained that he is not uploading documents in the system by himself, he depends on assistance and the person assisting informed him there was a problem in the system and he failed to use the system. He prayed his chamber summons and affidavit be adopted and prayed further this court to grant time so that he can challenge the decision of Resident Magistrate Court in Criminal Case No. 87 of 2023. Ms. Agma registered the position of respondent that they resist application. Citing paragraph 11, 12, 13, 14, 15 and 16 she submitted that some facts lack backup like print out of record in the system showing there was error and he mentioned the name of a person at para 11 without

supplying affidavit. She went on submitting that in some paragraph he mentioned the responsible person while other paragraph like paragraph 6 and 8 he did not mention who was that person. It was his stance that there are conditions to be met by the applicant whenever application for time is preferred as was provided in Wambere Page 3 of 7 Mtumwa vs Mohamed Hamis, Civil Application No. 138 of 2016 at page 14. One is length of delay, she said that applicant delayed in the beginning and manage to apply for time, that show he is familiar with court process and its corrido, they expect the second time he could act promptly in filing his application but was not the case. She concluded that failure to adhere to time show negligence on his side. Second is reasons for delay, it was her submission that respondent believe court need evidence so far as he failed to prove that there was the system which hindered him. Third condition is how the other party will be prejudice. They find they shall be prejudice because the law is for compliance. Applicant has been in court with several application on the same issue which show negligence on his side and that cause delay of justice on the side of respondent. The 4th is possibility to win the appeal, State Attorney cited para 16 of applicant affidavit she said prosecution managed to prove the offence and therefore applicant has no likelihood to

win his appeal. So far as he was given time and failed to explain how he spent 30 days and he acknowledge once he had service from legal aid provider, she prayed his application to be dismissed. Page 4 of 7 While rejoining applicant prayed this court to allow his application as in the 1st time, he managed to file application on time but court direction regarding correction complicated the matter and is where he lost the time. He prays this court to grant time. Following the parties' submission, I am now called upon to determine whether the applicant registered a sufficient reason for this court to grant him an extension of time. Applicant in this case shoulder all of his blame on court eCase Management System, that his appeal was wrongly filed. It is true that the Judiciary of Tanzania is now in revolution of using advanced technology in order to improve and simplify the services to the community. And, currently we have electronic Case Management System (eCMS) which is used to file and determine cases. We no longer prefer the ordinary paper system we used to. In short, we are running paperless know. Since we are continuing to improve the system for better performance, I also observed regular mistakes done from both ends (service providers and customers). As we are all still adjusting on better use of the system, I am not surprised by a mistake done by the applicant. Worse

enough, he is not directly capable to access the system since he is in prison. Page 5 of 7 State Attorney demanded for the proof of print out that it was the system which made the applicant not to file his application on time. There is a list of supplies needed for the applicant to attach print out including access to computer, connectivity of internet, literacy of computer application, familiarity on the eCMS so that to know at what stage the system failed to register uploaded document to mention few of them. I subscribe to conditions set by law when application of this nature has to be entertained as was in Yazid Kassim Mbakileki vs CRDB (1996) Ltd Bukoba Branch & Another, Civil Application No. 412/04 of 2018 and Tanzania Bureau of Standards vs Anitha Kaveva Maro, Civil Application No. 60/18 of 2017 and Wambere Mtumwa vs Mohamed Hamis (supra) as cited by respondent, however other facts too have to be considered as it is not always legal aid providers are punctual in serving those in custody. Further, it this court in Application with reference No. 202405292000014457 granted time so that the applicant can appeal, he is yet to appeal. So far as under section 361(1) of CPA extension of time is courts' discretion, and basing on the truth that applicant is a prisoner and he failed to utilize time granted under the circumstance of this case, my wisdom directs me to grant time Page 6 of 7 so that justice can be seen to be done by allowing the applicant to file an appeal and matter be entertained on merit. In the upshot, I allow the application. The applicant is given 30 days from the date of this ruling to file his appeal. This has to be marked as a last extension. It is so ordered. k M. L. KOMBA

JUDGE 19th September, 2024 Page 7 of 7