Regen Willard Kailote vs R

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA MISC. CRIMINAL APPLICATION NO.22506 OF 2024 (Arising from the District Court of Mbozi at Vwawa, Criminal Case No. 132/2017) REGEN WILLIARD KAILOTE…….....……...APPLICANT VERSUS THE REPUBLIC……………….……..……..….……………RESPONDENT RULING 5 September 2024 & 5 September 2024 SINDA, J.: The applicant has brought this application under Section 361 (2) of the Criminal Procedure Act, Cap 20 R.E 2022 (the CPA). The applicant prays for the following orders: (i) That – the Hon. Court may be pleased to grant the applicant leave for an extension of time within which to lodge a notice of appeal and petition of appeal out of time in Criminal Case No. 132 of 2017. (ii) That – any other relief as this Hon. Court may deem fit and just to grant. 1 The chamber application is dully supported by an affidavit sworn by the applicant. The applicant has alleged to have been convicted for the offence of rape contrary to Section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap. 16 R.E 2022 (the Penal Code) and sentenced to serve thirty (30) years imprisonment. At the hearing, the applicant appeared in person and was unrepresented. The respondent was represented by Mr. Salmin Zuberi, Learned State Attorney. The applicant briefly prayed the court to adopt his reasons set forth in his affidavit. Mr. Zuberi did not object to the application. The Applicant stated that, the judgment was delivered on 1 June 2018. He was taken to Mbozi prison on 2 June 2018. He prepared the notice of appeal and handed it to the officer in charge of Mbozi Prison for transmitting it to court. On 4 June 2018, he was transferred to Ruanda central prison. The trial court supplied him with the proceedings and copy of the judgment on 17 August 2019 and without delay, he prepared the petition of appeal and handed it to the prison authority to forward it to court. At the hearing of the appeal No. 159 of 2019 on 25 March 2020 the appeal was found to be out of time and was struck out. From 25 march 2020, he did not receive a copy of the judgement and the proceeding to enable him to prepare his 2 application for leave for an extension of time as all his documents were attached to the petition of appeal. He was supplied with the documents on 13 May 2024. On the other hand, the respondent opted not to file a counter affidavit. Having considered the submissions of both parties and examined the grounds stated in the applicant’s affidavit, the question is whether there is any justification for this court to exercise its discretion under Section 361 (2) of the CPA. The said provision states that: “The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has lapsed” From the record, it is clear that the failure to file a petition of appeal on time was not the appellant fault and was totally beyond his control. That being the case and considering that the applicant is currently serving time in prison, he has no control over his affairs. It has been decided in a number of cases that being in prison, the applicant loses control of the appeal process, thus amounting to sufficient cause for the delay. See: Buchumi Oscar vs. Republic, Criminal Appeal No. 295 “B” of 2011 (CAT, unreported), William Ndingu @ Ngoso vs. Republic, Criminal 3 Application No.3 of 2014 (CAT, unreported) and Maneno Muyombe and Another vs. Republic, Criminal Appeal No. 435 of 2016. As a result, I find the applicant advanced good cause for the delay. I grant the application. The applicant is to file a notice of appeal and petition of appeal within 21 days from the date of this Ruling. Dated at Mbeya on this 5 day of September 2024. A. A. SINDA JUDGE 4