SAID RASHID ABDALLAH VS REPUBLIC

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI SUB REGISTRY

AT MOSHI MISCELLANEOUS CRIMINAL APPLICATION NO. 24677 OF 2024 (Arising from Criminal Case No. 21 of 2023 of the Resident Magistrate’s Court of Moshi at Moshi) SAID RASHID ABDALLAH………..................................APPLICANT

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

RULING 05/02/2025 & 05/03/2025 SIMFUKWE, J. The applicant represented by Mr. Charles Mwanganyi, learned counsel moved this court under section 361(2) of the Criminal Procedure 1 Act [Cap 20 R.E 2022] and section 11(1) of the Appellate Jurisdiction Act [Cap 141 R.E 2022]. He applied for extension of time to file a Notice of Appeal and Appeal before this Court against the decision of the Resident Magistrate’s Court of Moshi at Moshi in Criminal Case No. 21 of 2023, dated 8th March 2024. The application was preferred by way of chamber summons supported by an affidavit of the applicant. At the hearing, the applicant had the service of Mr. Charles mwanganyi, learned counsel while Mr. Kambarage Samsoni argued the application for the respondent. The application proceeded viva voce. In his submission in chief Mr. Mwanganyi adopted the affidavit of the applicant to form part of his submission. He submitted that the decision in Criminal Case No. 21 of 2023 was delivered on 08/03/2024. However, the applicant was unable to file his Notice of Appeal within ten days as required under Section 361 of the Criminal Procedure Act (supra). He explained that it is the requirement of law that when one is out of time, he should apply for extension of time upon showing good cause. Mr. Mwanganyi cited the following reasons for the applicant’s failure to file the notice of appeal in time: The first

reason was said to be technical delay as the former application, Misc. Criminal Application No. 16292 of 2024, was granted on 08/07/2024. 2 Thereafter, Mr. Henry Mwangwala, the learned counsel who was representing the applicant became sick and passed away on 01/08/2024 due to colon cancer. Thus, the applicant could not file his notice of appeal as granted. The third reason was stated to be, late supply of proceedings of Criminal Case No. 21/2023. Mr. Mwanganyi submitted that the applicant believes that his intended appeal has great chance of success. In conclusion, he prayed the application to be granted as prayed. The application was opposed by Mr. Kambarage Samson who dully represented the respondent. He adopted his counter-affidavit to form part of his submission. Mr. Kambarage concurred with Mr. Mwanganyi that Section 361(1)(a) of the Criminal Procedure Act (supra) accords an opportunity to the aggrieved party to file notice of appeal within ten days. That, if the applicant is out of time, he must apply for extension of time by advancing sufficient cause under Section 361(2) of the Criminal Procedure Act (supra). The learned State Attorney highlighted that granting extension of time is at the discretion of the court. The discretion must consider prescribed factors, as outlined in Lyamuya Construction Company Ltd 3 v. Board of Registered Trustees of Young Women’s

Christian Association of Tanzania, Civil Application No. 2 of 2010, CAT, at page 6 of the ruling. First, the applicant must account for the entire period of delay. The learned State Attorney noted that the previous ruling, which granted extension of time and was uncontested by the respondent, was delivered on 08/07/2024. The ten days expired on 17/07/2024. However, no reason has been advanced in the affidavit explaining why the applicant failed to file the notice within that period. He stressed that each day of delay must be accounted for, noting that from 08/07/2024 to the date of filing the application on 28/08/2024, 52 days had elapsed without justification. It was further argued that the applicant was not in prison, making the delay inexcusable. Concerning the claim that the applicant’s counsel passed away, Mr. Kambarage asserted that, based on the attached proceedings and judgment of Criminal Case No. 21 of 2023, the applicant was represented by Everlasting Legal Aid Foundation, which assigned the deceased advocate to represent the applicant. When Advocate Mwangwala became ill, another advocate, Rehema Mgweno, was assigned to represent the 4 applicant. Therefore, the applicant had the option to engage another advocate, as he was not restricted. The learned State Attorney added that in Criminal Application No. 16292 of 2024, the applicant was represented by Advocate Denis

Maro. The learned State Attorney concluded that reasons advanced by the applicant do not justify granting the application. He prayed that the application be dismissed. In rejoinder, Mr. Mwanganyi reiterated his submission in chief. Regarding the argument that the applicant could have been represented by another advocate, it was replied that this fact was not deponed in the counter- affidavit. Thus, it was a mere statement from the bar that should be disregarded. He cited the case of Rosemary Stellah Chambe Jairo vs David Kitundu Jairo, Civil Reference No. 6 of 2018, CAT (02 Sept 2021) 442, in which the Court held that submissions must align with what has been deponed in the affidavit. He thus urged the court to disregard the State Attorney’s submission. Concerning failure to account for the period from 08/07/2024 to 28/08/2024, Mr. Mwanganyi reiterated his submission in chief. He subscribed to the cited case of Lyamuya Construction (supra), and 5 believed that they had advanced sufficient reasons for the delay. He prayed the application to be granted. I have thoroughly considered and analysed submissions and affidavits of both parties. The primary issue for determination is whether the application has merit. Before resolving this issue, I wish to emphasize at the outset that granting extension of time is a matter of judicial discretion. This discretion, however, must be

exercised judiciously and in accordance with established legal principles. Nonetheless, for the Court to exercise such discretion in favour of the applicant, the applicant must establish good cause. What constitute ‘good cause’ was re-stated in the case of Registered Trustees of Crown Education Trust vs AKIBA Commercial Bank (Civil Application No. 101/16 of 2023) [2024] TZCA 696 (7 August 2024) Tanzlii at page 4, where the Court of Appeal held that: “It is noteworthy that, the said power is at the discretion of the Court. However, what exactly constitutes good cause was not codified although this Court has, in various instances, stated a number of factors to be considered. 6 These includes; whether or not the application has been brought promptly; an existence of valid explanation for the delay and whether there was diligence on the part of the applicant.” Illegality of the impugned decision is also recognized as sufficient ground for granting extension of time, even where the applicant has not accounted for each day of delay. The principle was reaffirmed in Mohamed Salum Nahdi vs Elizabeth Jeremiah (Civil Reference No. 14 of 2017) [2019] TZCA 168 (14 June 2019) Tanzlii, at page 7, where the Court held that: “We say so because the law is fairly settled that in applications of this nature, once an issue of illegality in the decision sought to be challenged is raised, that

amounts to good cause and the Court, even if every day of delay is not accounted for, would grant an extension sought so as to rectify the illegality on appeal. That this is the law which has been stated by the Court in a string of decisions.” 7 Having established the position of the law, I now turn to the present application. According to the applicant’s affidavit, he relied on two factors which, in his view, justify the extension of time by this court. The first factor, as stated at paragraph 12 of the applicant’s affidavit, is that, after this court had granted extension of time, his advocate fell ill and, unfortunately, passed away. The argument was emphasized by Mr. Mwanganyi, who contended that this circumstance constitutes good cause. However, the assertion was refuted by Mr. Kambarage, who submitted that the applicant had the option of being represented by another advocate from the same law firm. He further noted that in Criminal Application No. 16292 of 2024, the applicant was represented by Advocate Denis Maro. Reverting to the legal requirement of accounting for each day of delay, it is evident that the applicant has failed to do so. The reason for this failure is clear: in the previous application in which the applicant was granted extension of time, he was represented by Advocate Denis Maro. Thus, the passing of Advocate Henry Mwangwala bears no relevance to

the applicant’s delay in taking the necessary steps. Had Advocate Henry 8 Mwangwala been the last legal representative of the applicant, the same could have constituted a valid ground for extension of time. The trial court proceedings show that Advocate Rehema Mgweno took over before the prosecution had closed its case and before the case reached its finality. Consequently, the allegation that the advocate fell ill and subsequently passed away is unfounded and devoid of merit Regarding the second factor of illegality in the impugned decision, the applicant asserted at paragraph 13(i) of his affidavit that the trial court failed to consider his evidence. Moreover, at paragraph 13(ii), he stated that the trial magistrate relied on exhibits that were admitted after the court became functus officio. Furthermore, the applicant alleged that the prosecution failed to prove the case against him beyond reasonable doubt. Based on the ground of illegality, this Court firmly holds that the raised illegalities, particularly the failure to consider defence evidence and the issue of functus officio, fall within the exceptional circumstances justifying the extension of time sought. Hence, the raised illegalities suffice to warrant extension of time to allow the appellate court to consider the alleged errors on merit. 9 In the event, the Applicant is hereby granted twenty-one (21) days from the date of this ruling to file his notice of Appeal and Appeal against the decision of the Resident Magistrate’s Court at Moshi. Application granted. It is so ordered. Dated and delivered at Moshi this 05th day of March 2025. X S. H. SIMFUKWE

JUDGE Signed by: S. H. SIMFUKWE 05/03/2025 10