CRIMINAL APPLICATION STIVE MWITA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY

AT MUSOMA MISC. CRIMINAL APPLICATION NO. 000029398 OF 2024 REFERENCE NO. 202410152000029398

BETWEEN STIVE MWITA........................................... APPLICANT

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

RULING '13th 8113th November, 2024 M. L, KO MBA, J, This application preferred under section 361 (2) of the Criminal Procedure Act (Cap 20 R.E 2022), whereas the applicant herein imploring this court to grant him leave to file an appeal out of prescribed time. The application was brought by way of chamber summons and supported by affidavit deponed the applicant himself. The respondent didn't file counter affidavit to contest the application. As per practice she remained by a room to contest on the point of law only during the hearing of the application. What gathered form the affidavit is that, upon full trial, applicant was convicted and sentenced to life imprisonment and to compensate victim Page 1 of4 TZS 1,000,000/. He went on deponed that he lately received a copy of judgment, that was 03/04/2024 while the judgment was delivered on 29/11/2022. He prayed this court to allow him to appeal out of time During the hearing of the application, the respondent was serviced by Mr. Michael Kayombo, and Ms. Natujwa Bakari, all State Attorneys whilst on the other hand the applicant fended for himself. In his submission, the applicant was of the few words, he prayed the court to consider his application, he was Bunda Prison before transferred to Musoma Prison where he was assisted to prepare this application. He prayed for time so that he can appeal before this court. In response, Mr.

Kayombo resisted the appeal claiming that applicant failed to account days of delay from the time he received a copy of judgment while it is settled that in application of this nature counting of days is inevitable. He cited the decision in Benjamin Amon vs Republic, Criminal Application No. 106 of 2018 to boost his argument. He prayed the application to be dismissed. While noting that applicant is a prisoner, State Attorney proceeded that, the applicant was supposed to file his appeal with the help of prison officer as per section 363 of the Criminal Procedure Act. Following the short submission by both parties, I am now called upon to determine whether the applicant registered a sufficient reason for this court to grant him an extension of time to file his appeal. It is settled law that an application for extension of time will only be granted upon the applicant showing good cause for the delay and has to account each day of delay. There is a plethora of authorities on this point. See Benjamin Amon vs Republic (supra), Tanzania Coffee Board vs Rombo Millers Ltd, Civil Application No. 13 of 2015, Yazid Kassim Mbakileki vs CRDB (1996) Ltd Bukoba Branch & Another, Civil Application No. 412/04 of 2018 and Tanzania Bureau of Standards vs Anitha Kaveva Maro, Civil Application No. 60/18 of 2017 (all unreported), to mention but a few. The applicant herein submitted that he was in

Bunda Prison and later on transferred to Musoma Prison where he was assisted to file his * . *■ . application. I find applicant made effort to make sure he appeals that why he filed this application. I agree with the provision of section 363 of the Criminal Procedure Act. However, to be assisted by prison officer is a favour given by those officer and it is hard to determine if he was given that assistance and applicant denied as when he was shifted to Musoma he remember he struggled and managed to file this application. Page 3 of 4 The fact that the applicant is a prisoner, his action and movements solely depend on the mercy of the officer-in-charge of the prison. It is unfair to expect much from a prisoner. See Maneno Muyombe & Another vs Republic, Criminal Appeal No. 435 of 2016 and Buchumi Oscar vs Republic, Criminal Appeal No. 295 'B' of 2011 (both unreported). In the event analysed above and in the circumstances of this application, I allow the application. The applicant is given 30 days from the date of this ruling to file his appeal. M. L. KOMBA

JUDGE 13th November, 2024 Page 4 of 4