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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI MISC. CRIMINAL APPLICATION NO. 20016 OF 2024 (Originating from Mise. Criminal Application No. 15206 of2024 in the High Court of Tanzania - Manyara Sub Registry) SWALEHE MOHAMED............................APPLICANT VERSUS THE REPUBLIC......................................................... RESPONDENT RULING l'}" August & lf)h September, 2024 Kahyoza, J.: Swalehe Mohamed was charged with the offence of prohibition of trafficking in narcotic drugs, convicted on upon his own plea of guilty and sentence to serve twenty (20) years term of imprisonment. He did not appeal. Later, he lodged an application for leave to appeal out of time. On the date fixed for hearing the application, the applicant and his advocate defaulted to appear. The court dismissed the application for want of prosecution. Determined to appeal, the applicant instituted the current application seeking to the court to set aside the dismissal order. The respondent filed a counter affidavit to oppose the application contending that the applicant and the applicant's advocate had not disclosed sufficient reason for their absence. 1 | Page The issue is simple that is whether the applicant and his advocate had disclosed sufficient reason for their non-appearance. The applicant's advocate submitted that he had made arrangement for the application to be heard virtually by contacting the court clerk and Mr. Johnson Charles Ndibalema who represented Republic. And stated further that on the same date at around 8:00am he tried to call court clerk who uses phone number 0620207794 with intention to ask him the specific time but never answered his calls. Later, he attended the High Court criminal session conducted before Hon. Itemba J. at Mwanza sub registry. He tried to call again the court clerk but he realized may be there was problem with network related with link which was provided to him on 12/5/2024 via phone no 0715281491 with name Ombeni. He after called again the court clerk who picked up his call and who informed him that the case was dismissed for want of prosecution. The issue is whether the applicant or his advocate adduced sufficient reason his non-appearance. Ms. Blandina's position is that the applicant's advocate did not adduced strong reasons why he could not appear in court on 15/7/2014. She demanded the applicant's advocate prove the allegations in the affidavit. She vehemently submitted that the applicant's advocate never attached an affidavit of the court clerk to prove the allegations that the court clerk did not receive his call or that 2 | Page the network was down. She added that the attached summons showed that the summons were issued on 26/6/2024 but there was no indication as to when he received the summons, and never notified the Court he had another matter. The applicant's advocate contented that he did not appear because of network failure and that he tried to communicate with the bench clerk and failed. He alleged that the bench clerk did not pick his phone call. He did not attach affidavit(s) of bench clerks he communicated with on that day or before to establish that he took trouble to appear virtually and failed. Also, I did not find it proved that he called the bench clerk several times to get time when the application would come for hearing and failed. I am of the firm view that the applicant's contention that he failed to appear due to network failure is not proved. With due respect, I find the advocate contention a mere allegation as a serious advocate would have obtained time fixed for hearing the application a day before or days before, he would not have sat back and relaxed until the hearing date. The applicant's advocate contended further that, he failed to appear because he was assigned dock briefs and that he appeared for briefing at 08:45 am before this Court (Itemba J.). He attached 3 | Page summons to prove that he was assigned dock briefs and he was appearing for the preliminary hearing on that day. The applicant's advocate was not diligent. He had a duty to notify the court that he had been assigned a dock briefs well in advance and pray for adjourned. How did he expect to enter appearance before Her Ladyship Itemba J. for preliminary hearing and at the same time appear before this Court? All in all, since some sub-registries of the High Court assign dock briefs to advocates belatedly, I will give the benefit of doubt to the applicant's advocate that he was belatedly notified to appear for preliminary hearing. Although he was negligent not to notify this Court that he had been assigned dock briefs, which according to long established practice are given preference over other matters, I find his absence to take dock briefs a sufficient reason. Thence, the applicant's advocate was absent for sufficient reason. In the end, I allow the application, set aside the dismissal order and restore Miscellaneous Criminal Application No. 15206 of 2024. /&' Ci I order accordingly. \\ \ / / Dated at Babati this 18thdayftof September, 2024 '^4 SUB^ John R. Kahyoza, J. 4 | Page Court: Ruling delivered in the presence of the applicant, his advocate and Ms. Blandina, State attorney for the Respondent. B/C. Ms. Fatina (RMA) present. John R. Kahyoza Judge 18. 9. 2024 5 | Pa ge