raphael majalisi kalembwe vs republic 2022 tzhc 15260 7 december 2022

THE UNITED REPUBLIC OF TANZANIA , JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MOROGORO) AT MOROGORO MISC. CRIMINAL APPLICATION NO. 45 OF 2022 RAPHAEL MAJALISI KALEMBWE..; APPLICANT VERSUS THE REPUBLIC. RESPONDENT -i} ■ ■ ' RULING . . Date of last order: 7/12/2022 Date of Ruling: 7/12/2022 MALATA. 3. The applicant, Raphael Majalisi Kalembwe, lodged chamber summons ■under section .361(2). of the-Criminal Procedure .Act seeking for orders 1 . This- honourable court be pleased to extend time within, which the applicant may file, the petition of appeal out of time against the • Judgment of,. Resident ■ Magistrate Court of Morogoro 'dated 02/06/2021. , 2. Any other order this court think just and fit to grant. Pa°e 1 of 6 The app!iGation':was accGmpanied by the .affidavit of the applicant who deposed that he-was charged, convicted and sentenced with the offence of.lncdsb dy'Maid-.oontrary to.se 158(1) of the Penal.'Code Cap 16, iR-.E 20r9.;■currently, serving thirty/ (30) years imprisonment. ■ Aggrieved by,both conviction "and sentence the applicant through Prison- Authorities, filednthc notice, of intention to appeal on the same day he .entered the prison at Morogoro, that is 03/06/2021 which was within the ■prescribed time 10 days as provided by the law. The applicant submitted that, few days thereafter he was transferred to KilOsa District Prison and he was'unable to do follow up on copy of judgment and'proceedings as his movements is limited to prison vicinity. The court records were transmitted to him through Prison Authorities late in .October'2021> he was already out of time to file an appeal to the High Court. . . . , •.. . When-this matter'.came for; hearing the applicant prayed his application for extension of time be granted. ■ Responding to-the applicant prayer, Mr. Emmanuel Kahigi, State Attorney submitted.; that,t^ have, gone through the .applicant's application and .noted that,;the same contain genuine reasons for his failure to file appeal within.ti'me. This reflected under paragraphs 5 and 6 of the affidavits and taking into account the appellant was sentenced to serve 30 years Page 2 of 6 imprisonment, theirespondent side has no'obiection to the application.VAs ' ■such;.-the applicant's:prayer be granted to enable the him' be :heard:.oh meritv. :-;- ■ ^ ■ ■ ■ ,r' ThishGourt.-has'considered the submission'by the parties which inter' aiia^ canvas, to rresp'bndent's-no objectibn io the. application. The 'point for'^ determiinatioR iS" whether the applicant has-advances s'ufficient reason for extension of time. . ■ ;■ - The applicant through; his submission, in particular, paragraphs 5 and 6 of the affidavit.advanced grounds for the delay that he was transferred to Kilosa: Prison and the copy of the proceedings andTjudgment were delivered late, and upon filing his appeal he was already out of time prescribed by the law. : It. is settled principle in our jurisdiction that, extension of time is court's discretion. This principle is well , settled in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Womens Christian Association of Tanzania^- C\y\\. .Application no. 2 of 2010> Court of Appeal (unreported), the court stated; "Asa matter of genera! priricipJe^:It discretion ofthe/r. -\ f - Court to grant extension of time. But that discretion is judiciai, r . and so it must be exercised according to the ruies of reason and . ; justice, and not according to private opinion or arbitrariiy". Page 3 of 6 '• Further;;.in "Lhe.-'case: of- .Reglonal Manager Tanroads Kagera vs. Ruaha CdncreteMo. Ltd/:£m\'A['i\}e3\. v\Q9^ Of 2007-(unrepGrted;),'the . . Court of Appeal decision had'these to say; ■ • ■ : -. -'The:testfor determihing:an:a for extension oftimejyjs ..y' ■^ : - whether the applicanthasjestabiished some material amounting:\ :, sufficient cause or good cause as to why the sought application is to be granted." . . . : This means that in granting the prayer for application of extension of time ■ the court has to. consider if the applicant has advanced good cause, or sufficient;cause-as to-why the sought application is to be granted, that is to say the court need .to:take into account factors such as the reason for the delay Section 361(2) of the Criminal Procedure Act provides that, "the high court: mayrfdr good causOf admit an appeal , nQtwithstahdingthe.period oflimitation prescribed in this section has elapsed." . .Whatamount to good causie. was stated, in the case of National- Bank of Commerce vs. SailegaiiHoJdings Limited and one anpther/ Civil Application, no 661 of.2021;Court..of appeal (unreported) where.the court stated that Page 4 of 6 "Now, if the'^phrase "good cause" is to be construed- in its ■ ■ - ordinary sense,- it seems to me very simple andAndeed:very:fair tO[hold::asiI:hBreby do.bliat, after being'givenAeayeAo appeal, - - v . the applicant was precluded from doing so on- account ofthe •reasons-andcircumstances which were beyond her- control" In the application before this court, the applicant has through -affidavit advance reasons for delay in paragraphs 5 and 6 of the affidavit that,; o/re, he being a - prisoner was..' transferred to Kilosa prison immediately thereafter, thus incapable of making proper follow up to get the trial court records for his appeal, therefore the delay was contributed by circumstances beyond his control two, the applicant is serving 30 years imprisonment which is a long sentence, it is in the interest of justice that the applicant be on merits, i/iree,there is no prejudicial to the respondent if the applicant's prayer is granted. In the circumstances,.I find the application has'merit and it is.accordingly granted. The-applicant is given twenty-one (2'1) days file an appeal with effect from the date of this ruling. ■ It is so orderedv- .' . .Hon. G.P. M TA JUDGE 7^*^ December 2022 Page 5 of 6 Court'' Ruiing .delivered dn.7'^-December; 2022 inxhamber in the presence of Mr... Emmanuel.. Kahigi,^ State.Attorney for Respondent and the Applicant in person. o o Hon. G.P. MAI ATA u JUDGE 7^^ December 2022 Page 6 of 6