tito application leave

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA MISC. CRIMINAL APPLICATION NO. 22017 OF 2024 (Originating from the District Court of Maswa at Maswa in Criminal Case No. 57 of 2020) TITO ALOIS KABUME ………………………….…………. APPLICANT VERSUS THE REPUBLIC......................................................RESPONDENT RULING 28th August & 13th September 2024. MASSAM J:. This application is brought under Section 361(2) of CPA Cap 20 R.E The applicant sought leave to lodge notice of appeal and appeal out of time. The applicant’s application is supported by an affidavit sworn by Tito Aloyce Kabume the applicant. The application is opposed by the respondent who filed a reply to the Affidavit sworn in by the respondent in this application. Briefly, it goes thus, in Maswa District Court applicant was charged with the offence namely obtaining money by false Pretence c/s 301 and 302 of the Penal Code Cap 16 R.E 2019 being the first and second count. After the trial court heard the case found applicant guilty, convicted him 1 to face imprisonment of five years in jail for two charges. The applicant was aggrieved by the conviction and sentence given by trial court where he found himself out of time, hence this application for extension of time within which to file a notice of intention to appeal and appeal out of time. During the hearing of this application, the applicant appeared in person unpresented, while the respondent was represented by Mr. Goodluck Saguya learned State Attorney. Arguing in support of the application, the applicant submitted that he had two Appeals No. 19 and 45 of 2022 which all of them he brought it on time on 4/4/2022. He stated that appeal no 45 /2022 was struck out for being filed out of time where he was given leave to brought another appeal which was Appeal No. 95 of 2022 whereby the same was struck out for being filed out of time so he remained with Appeal No. 19 of 2022 which was heard and determined and his appeal was dismissed for being unmerited. He added that the said Appeal No. 95 he was extended time of 14 days by Morris J, to file appeal out of time which was given No 143/2023 which was before Mwakahesya J, the same was struck out for being filed out of time. Lastly, he said that all his appeal he brought it the same date he wondered what happened to it, so he prays to be given leave in order to 2 file notice and appeal out of time as since 2022 he is struggling to be heard his appeal. On the other hand, the counsel for the respondent, resisted all what have been submitted by the applicant by stating that, the applicant received a copy of judgment on 4/3/2022 and judgment was delivered on 12/11/2021. He stated from the date of delivery of the judgment to the date of applicant appealed was almost three months and a half ,and his appeal was struck out as it was appealed out of time and he was given the leave to file it within 30 days but he filed the said appeal without attaching the copy of that leave to proof that he had extension, and the same was struck out and given another 14 days to file his appeal but again he did not attach the order for extension of time before Mwakahesya J, again the same was struck out hence this application. Mr Saguya added that the applicant failed to bring sufficient reasons to be extended time to file notice and appeal out of time. In his rejoinder submission applicant stated that he was convicted and sentenced on 12/11/2021 and since then he was a prisoner so he failed to make a follow up of the copy of judgment and proceedings. So, the prison officer was the one who made a follow up. He insisted that to be given time to file his notice and appeal out of time. 3 I have read and considered the submissions by both parties. The issue is whether the application discloses sufficient cause for extension of time. Having considered the parties’ arguments, I noticed that the applicant prayed to this court to be granted extension of time to file notice of intention to appeal and appeal due to the attempts and struggles which he made since 2022 for his appeal to be heard. He told this court that he attempted for many times but his appeal become struck out for being filed out of time and even when this court extends him time he find himself out of time because he is a prisoner he depends much in prisoner officers to help him. He also added that he brought his two appeals on time one of it was heard and determined but the other one is this which he pray to be given time to file it out of time. It is settled law that granting the prayer for and extend time is within the discretion of the court. However, this discretion should be exercised judiciously for the court must be guided by the principle as to whether the applicant has advanced good cause for the court to consider and along the good cause, the applicant is required to account for each day of delay. 4 The term, good cause has not been defined under the law and therefore, each case has to be determined in accordance with its own facts and circumstances surrounding it. This was also said in the case of Jacob Shija vs M/S Regent Food & Drinks Limited & Another Civil Application No, 440/08 of 2017, where the Court of Appeal at Mwanza held that; "What amounts to good cause cannot be laid by any hard and fast rules but are dependent upon the facts obtained in each particular case That is, each case will be decided on its own merits, of course taking into consideration the questions, inter alia whether the application for extension of time has been promptly, whether every delay has been explained away, the reasons for the delay, the degree of prejudice to the respondent if time is extended as well as whether there was diligence on the part of the applicant." In this matter at hand, the applicant insisted that there were sufficient reasons before to extend time for the applicant to file his appeal out of time this court went through the records and finds out that it true that applicant since 2022 was struggling by attempting to file his appeal out of time and the same ends by being struck out for being filed out of time and the main reason advanced by the applicant was that he had no way to make a follow-up of the copies of the judgment to the trial 5 court and even after got the same as the prisoner he was waiting for prison’s mercy to help him to file his appeal. He insisted that he was convicted in two cases and appealed in the same but one of the cases was already heard and remained with it. In the side of the respondent Mr. Saguya State Attorney insisted that the applicant failed to brought the sufficient reasons to extend time to file his appeal out of time. Referring to the applicant's affidavit and his submission, I don’t agree with the respondent's learned counsel that the applicant failed to advance sufficient reasons because the record show that since 2022 he was attempting his appeal to be heard so this court can see struggles which he put by filing different appeals and as we know that what amounts to a good cause is not defined, so this court find the said to be factors to be considered and held that the applicant had sufficient reasons to be given leave to file notice and appeal out of time. Again, as is the principle of the law that, despite of my findings that there were sufficient reasons, the applicant is duty bound to account for each day of delay, the principle is stated by the court of appeal in Airtel Tanzania Limited Vs Misterlight Electrical Installation Company Limited & Another, Civil Application No, 37/01 of 2020 referred with authority to the case of Bushiri Hassan vs. Latifa Lukio Mashayo 6 Civil Application No. 03 of 2007, (unreported) where the Court emphasized that: ‘’…Delay of even a single day, has to be accounted for, otherwise there would be no point of having rules prescribing the period within which certain steps have to be taken.’’ In this instant matter, the applicant as stated earlier he was struggling to file his appeal by filing different appeals and application to make sure that his appeal is heard on merit nowhere show that he was negligent as we all know that he was a prisoner so the one who used to make a follow up and prepare the documents was the prison’s officer so this applicant can be blamed for the negligence or any delay which was done by other person who has duty to do so . It is therefore that, in line with sufficient reasons advanced by the applicant, he also accounted for every day of delay as required. Consequently, this application is allowed and the applicant is granted leave for lodging a notice of appeal and petition of appeal from the orders of Maswa District Court made on 12/11/2021. Both notice of appeal and petition of appeal shall be lodged within 14 days from this ruling. It is so ordered. 7 DATED at SHINYANGA this 13th day of September 2024. R.B. Massam. JUDGE 8