Sifa ruling

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISCELLANEOUS CRIMINAL APPLICATION NO. 7229 OF 2024 (Arising from Criminal case No. 90/2018 District Court of Bukombe at Bukombe). SIFA ANDREA KALIDUSHI ………………….……………………… 1ST APPLICANT YUDA ROBERT ...................................................................... 2ND APPLICANT SHIJA MATUNGE ................................................................... 3RD APPLICANT HOJA MASASILA ................................................................... 4TH APPLICANT

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

RULING 03rd & 20th September 2024 CHUMA, J. In this application preferred under section 361(2) of Criminal Procedure Act Cap 20 RE 2022, the applicant is seeking the indulgence of this court for a grant of an extension of time to lodge a notice of appeal out of time against the decision in criminal case No. 90/2018. The application is supported by the affidavit of the applicants. In this application, the applicants appeared in person while the Republic was represented by Mr. Ngussa SA. 1 In their submissions, the applicants alleged to have timely prepared the notice of intention to appeal and handed it over to the prison admission office but because of their transfer from Butimba Mwanza to Songwe prison and Songwe to Ruanda Mbeya, they did not know if the same was sent to the court. And that they also took so long to be availed with the proceedings and judgment. This fact was contested by Mr. Ngussa SA for the republic stating that under section 361(2) of CPA Cap 20 R.E 2022, this court has the power to grant an extension of time where there is good cause. In this matter, no good cause was ever given by the applicants to warrant this court to grant it. He invited this court to a case of Ausi Mzee Hassan Vs. R Criminal Application No.69/01 of 2022 CAT at Morogoro at page 7 where the Court emphasized that the court can extend time where there is good cause. Guided by the cited

case law and provision of Law it was his submission that the application goes without sufficient reasons to persuade this court to allow their sought order. The alleged transfer from one prison to another goes without proof for instance affidavit from the prison officer etc. He went on to argue that the applicants had ample time to lodge their claim however they failed to lodge a Notice of intention to appeal within time and instead filed the same on 24th January, 2019 two months from the date of Judgment. He once again referred this court to 2 a case of Lyamuya Construction Co Ltd Vs. Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No 2/2010 CAT at Arusha at page 6 where the Court provided conditions to consider by the court before granting an extension of time. In the instant case, the applicants failed to account for each day of delay in their application as among the conditions discussed in the cited case of Lyamuya case (supra). He invited this court to dismiss the application for want of merit. Having heard the party’s submissions and after my scrutiny of the record of the application the issue for determination by this court is whether the applicant has demonstrated good cause to warrant the grant of extension of time to file a notice of appeal out of time. It is a cardinal law that an extension of time is granted

subject to the establishment of sufficient cause as submitted by Mr. Ngussa State Attorney for the republic. This stance was also held in the case of Abdallah Said Athumani Vs. Somo Said Civil Application No. 370/2023 on page 6. The conditions were set out in the case of Lyamuya Construction Company Ltd V Board of Registered Trustee of Young Women's Christian Association of Tanzania Civil appeal No. 2/2010. What amounts to sufficient or good cause has been discussed in a range of cases including the Court of Appeal case of John Mosses and 3 Three Others Vs. The Republic, Criminal Appeal No. 145 of 2006 where the position of the law stated in the case of Elias Msonde Vs. The Republic, Criminal Appeal No. 93 of 2005 was quoted. The Court of Appeal stated “We need not belabor the fact that it is now settled law that in an application for extension of time to do an act required by law, all that is expected by the applicant is to show that he was prevented by sufficient or reasonable or good cause and that the delay was not caused or contributed by dilatory conduct or lack of diligence on his part”. It was also stated by the Court of Appeal in the case of Blue Line Enterprises Ltd. V. East African Development Bank, Misc. Application No. 135 of 1995 (unreported) that: - “It is trite law that extension of time must be for sufficient cause and that extension of time cannot be claimed

as of right, that the power to grant this concession is discretionary, which discretion is to be exercised judicially, 'upon sufficient cause being shown which has to be objectively assessed by Court." Guided by the above position, the reasons advanced by the applicants in their application are transfers from Butimba Prison to Songwe and Songwe to Ruanda Prison Mbeya. They also seem to shift the burden to the prison admission office as according to them the notice 4 was prepared timely and handed over to the admission office. It might be true that the applicant failed to strictly account for each day of delay as rightly submitted by Mr. Ngussa State Attorney. However, being lay persons, they appear to be honest in their submission but also with no good idea about how our criminal justice system operates. If I may go further the alleged transfer and circumstances of the prison no doubt may call for this court's attention to think twice whether to grant or not the sought order. In the case of Yara Tanzania Limited (supra) where Kenyan cases of Savings and Loan Kenya Ltd. Vs. Onyacha Bwomonte, Civil Application No. 70 of 2004 and Belinda Murai & Others Vs. Amos Wainaina, Civil Application No. 9 of 1978 were cited, in those cases the court held that the court should not keep the door of justice closed as the duty of the court is to dispense justice to the parties. From the

foregoing position, it is beyond doubt that the applicants disclosed no good reasons for their delay as per the above-stated principles. But as earlier stated attributed to their ignorance of the law and procedure. However, considering their honest submissions and their transfer from one prison to another, I exercise my discretion in their favor to grant the sought order. I feel compelled to state that by this decision I am not ignoring the set principle to be considered for grant of extension 5 but rather my findings are in respect of peculiar circumstances of this application having heard the parties in dispute. In the event, the application is granted. The applicants should file their notice of appeal within 14 days from the date of this order. I so order. DATED at MWANZA this 20th day of September 2024. W.M. CHUMA

JUDGE 6 The ruling delivered in court before the applicants in person and Mr. Mahembega State Attorney for the Republic this 20th day of September 2024. J. MSAROCHE

DEPUTY REGISTRAR 7