PROCHES KAVISHE RULING 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) Misc. CRIMINAL APPLICATION No. 33336 OF 2024 (Arising from the High Court [Musoma Sub Registry at Musoma] in Criminal Appeal No. 145 of2020 & the Resident Magistrate Court of Musoma at Musoma in Corruption Case No. 2 of 2018) PROCHES CHRISTIAN KAVISHE...................................APPLICANT Versus THE DIRECTOR OF PUBLIC PROSECUTIONS......... RESPONDENT RULING 25.03.2025 & 26.03.2025 Mtulya, J.: The applicant, Mr. Proches Christian Kavishe was arraigned before the Resident Magistrate Court of Musoma at Musoma (the trial court) in Corruption Case No. 2 of 2018 (the case) for allegations of obtaining corrupt transactions of Tanzanian Shillings Ten Million (10,000,000/=) contrary to section 15 (1) (a) & (2) of the Prevention and Combating of Corruption Act, No. 11 of 2018 (the Act). At the conclusion of the case, the applicant was found guilty to the charges and fined to pay Tanzanian Shillings Five Hundred Thousand (500,000/=) or serve three years in prison in default of the payment. The applicant was also ordered to surrender the indicated sum of monies to the complainant via Prevention and Combating of Corruption Bureau (PCCB). The applicant was aggrieved by the decision of the trial court and had approached this court in Criminal Appeal No. 145 of 2021 (the appeal) complaining that exhibit P.4 was wrongly admitted into i the record and the case against him was not proved beyond reasonable doubt. This court heard the applicant and finally had declined the reasons of appeal and it issued further orders against him, including a sentence of serving five (5) years in prison. The applicant was also not pleased with the decision, reasoning and orders of this court in the appeal hence approached the Court of Appeal (the Court) in Criminal Appeal No. 16 of 2021 (the criminal appeal) complaining on a bundle of issues which display that the case was not proved beyond reasonable doubt. The applicant was listed in the Court's Cause List of the Third Week of hearing appeals originated from this court in Musoma Sub Registry at Musoma, and summons were issued for hearing on 4th November 2024. However, the hearing schedule of the Court was re-scheduled and the criminal appeal was set for hearing on 23rd October 2024. On the indicated day, that is 23rd October 2024, the applicant could not enter his appearance. His reason was that he was not notified hence unaware of the change of the hearing date. The record shows that the Court had noted the incident and thought that: ...the information communicated to the Court through a letter dated 2/6/2023 by the Officer In-charge of Kiabakari Prison, is that the appellant had finished serving his sentence since 2/6/2023...having considered the information contained in the letter... we strike out the appeal with liberty to refHe should the appellant resurface. 2 It is from the last wording in the quoted paragraph recorded in the Court's order issued on 23rd October 2024, the applicant had resurfaced and intends to enjoy the right to be heard at the Court hence instructed Mr. Kisyeri Cosmas to prepare and argue the present application. Yesterday afternoon, Mr. Kisyeri was summoned in this court to explain the reasons of delay of the applicant, and had briefly explain that it was not his fault. According to him, the applicant had followed all necessary procedures properly to access the Court, but it was unfortunate that the hearing date was altered by the Court hence declined the applicant the right to be heard. The submission of Mr. Kisyeri was not protest by the respondent, who had marshalled Ms. Martha Mbosoli, learned State Attorney. I have had an opportunity to peruse the instant record, Rule 47 of the Tanzania Court of Appeal Rules 2009 (as amended) (the Rules), section 11 (1) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2022] and the decisions in Robert Wambura @ Mungine v. Republic, Misc. Criminal Application No. 44 of 2022, Otieno Obute v. Republic, Criminal Application No. 1 of 2011 and Yusufu Hassan v. Republic, Criminal Application No. 50/12 of 2017. The indicated section and Rule empower this court to resolve applications like the instant one. The precedents in Robert Wambura @ Mungine v. Republic (supra) shows that in resolving 3 applications, like the instant one, courts are required to scrutinize the reasons for the application and that each application depends on its peculiar circumstances. Regarding prisoners in prison authorities, the precedents in Otieno Obute v. The Republic > (supra) and Yusufu Hassan v. Republic (supra), have stated it all. The Court had stated that prisoners are not free agents who can freely make follow-ups on their matters in courts. In the instant application, the applicant was not only in prison serving his five (5) years term, but also his hearing schedule at the Court was altered to the different date. It was unfortunate on his part that the date was dragged back and there was no record at the Court on his whereabout after his release from prison authority at Kiabakari. His resurface and filing of the present application displays that the applicant is vigilant and determined to have his contest heard at the Court. Displaying vigilance on part of applicants for enlargement of time is one of the important factors to be considered in resolving contest of this species (see: The Registered Trustee of the Evangelical Assemblies of God (T) (EAGT) v. Reverend Dr. John Mahene, Civil Application No. 518/4 of 2017). Reading the totality of the record and order of the Court issued on 23rd October 2024, it is obvious that the Court is ready to receive and hear the applicant's complaints, if he so wishes, and this court may not frustrate the move. In the end, and having said 4 so, I am persuaded to grant the applicant ten (10) days leave from today to lodge the intended notice of intention to appeal to the Court without any further delay. Court: This Ruling was delivered in chambers under the seal of this court in the presence of the applicant's learned counsel, Mr. Kisyeri Cosmas and in the presence of Ms. Martha Mbosoli, learned State Attorney for the Republic. -. H. Mtjlyaj Judge 26.03.2025 5