dpp vs innocent cosmas muuna 2023 tzhc 16506 7 march 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA MISC. CRIMINAL APPLICATION NO. 37/2022 (Arising from Criminal Session No.65/2019 from The High Court of Tanzania, Dodoma) THE DIRECTOR OF THE PUBLIC PROSECUTION (DPP)........................................... APLICANT VERSUS INNOCENT COSMAS MUUNA ....................... RESPONDENT RULING Date of hearing: 03/03/2023 Date of Ruling: 07/08/2023 Mambi, J. This Ruling emanates from an application filled by the applicant (DPP) for an extension of time to file notice of appeal and memorandum of appeal out of time. The applicant in its application (MISC. CRIMINAL APPLICATION 37/2022). has prayed to this court to allow it to file notice of appeal and appeal against the decision made by this Court. I he application is supported by an affidavit where the applicant has stated its reasons for its delay. The applicant intends to challenge the impugned decision made by this court under Hon.Judge Masaju,J. During hearing MR. Bagenda appeared represented by the learned State Attorney Mr Bagenda while the respondent appeared u n r c p r c s c n ted. In his submission, the applicant briefly submitted that he has filed this application supported by an affidavit. lie argued that he has sufficient reasons to do so. The applicant State Attorney briefly submitted that he rely with his reasons under his affidavit. He argued that they delayed to appeal due to the fact that they did not receive the documents (proceedings & judgments) of this court on time. The learned State Attorney submitted that the matter was determined in Singida under State Attorneys from Singida and the State Attorneys in Singida received the documents late from Dodoma. He was of the view that since the matter was decided in Singida under different State Attorney with an office in Singida, there had to be official communication and exchange of files between the Office of DPP in Dodoma and Singida before filling an appeal in Dodoma In response, the respondent just briefly contended that he objects the application as he believed that there were no any sufficient reasons advanced by the applicant. 1 have considerably perused the documents and considered the submissions made by the applicant to find out whether this application has merit or not. My findings will be based on determining the issue as to whether the applicant has advanced sufficient reasons for this court to consider its application for an extension of time to file Notice of appeal and an appeal out of time. It is clear from the records that the applicant has advanced sufficient reason for the delay as such delay was beyond its control. The position of the law and case studies arc clear that where any party seeks for an extension of time to file an appeal out of time he is required to advance sufficient reasons in his affidavit before the court can consider and allow such application. This position was clearly underscored by the Court of Appeal of Tanzania in REGIONAL MANAGER, TANROADS KAGERE V. RUAHA CONCRETE COMPANY LTD CIVIL APPLICATION NO.96 OF 2007 (CAT unreported). The court in this case observed that; “the test for determining an application for extension of time, is whether the applicant has established some material amounting sufficient cause or good cause as to why the sought application is to be granted”. This means that in determining an application for extension of time, the court has to consider if the applicant has established sufficient cause or good cause as to why the sought application is to be granted. In other words, the court need to take into account factors such as reasons for delay, that's where the applicant is expected to account for cause of delay of vcy day that passes beyond the aforesaid period, lengthy of the delay is to be shown that such reasons were operated for all the period of delay. In the applieation before this court, the applicant in its affidavit (Paragraphs 4, 5, 6 and 7) has clearly indicated that it had sufficient reasons for its delay as it did not receive the documents on time. I have perused the applicant’s document including its affidavit in line with the State Attorneys, submission and found that the applicant has indicated reasonable or sufficient cause to enable this court to consider and grant its application. Indeed, the question as to what it amounts to “sufficient cause” was underscored in REGIONAL MANAGER TANROADS KAGERA VS RUAHA CONCRETE CO LTD CIVIL APPLICATION NO 96 of 2007, where the court observed the following:- “What constitutes sufficient reasons cannot be laid down by any hard or fast rules. This must be determined by reference to all the circumstances of each particular case. This means the applicant must place before the court material which will move the court to exercise judicial discretion in order to extend time limited by rules "(emphasis supplied). Similarly, The Court in TANGA CEMENT AND ANOTHER CIVIL APPLICATION NO 6 OF 2001 clearly held that: “What amounts to sufficient cause has not been defined. From decided cases a number of factors has to be taken into account including whether or not the application has been 4 brought promptly; the absence of any or valid explanation for delay; lack of diligence on the part of the applicant". Reference can also be made to the decision of Court of Appeal in which held that: MOBRAMA GOLD CORPORATION LTD Versus MINISTER FOR ENERGY AND MINERALS, AND THE ATTORNEY GENERAL, AND EAST AFRICAN GOLDMINES LTD AS INTERVENOR, TLR, 1998 Page 425 “It is generally inappropriate to deny a party an extension of time where such denial will stifle his case; as the respondents’ delay does not constitute a case of procedural abuse or contemptuous default and because the applicant” will not suffer any prejudice, an extension should be granted. Now since the applicant has advanced and presented sufficient reasons for delay and the extent of such delay in his application, I have no reason to dis-grant his application. I am of the considered view that this application has merit and this court finds proper the applicant to be granted an extension of time to appeal by filling notice and memorandum of appeal out of time. The applicant shall file his necessary documents for an appeal 07/03/2023 Ruling delivered in Chambers this 7lh day of March, 2023 in presence of the applicant. 6