WAZAEL JOSEPH NYUMBA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA MISCELLANEOUS CRIMINAL APPLICATION 000032505/2024 (Arising from the decision of the District court of Iramba at Kiomboi in Criminal Case No. 71 of 2021) WAZAEL JOSEPH NYUMBA.......... .................. APPLICANT

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

RULING 5th March 2025 MASABO, J .:-. Before me is an application for leave for extension of time. It has been filed under section 361(2) of the Criminal Procedure Act, Cap 20 R.E 2022. The applicant's sole prayer is for extension of time to lodge his notice of appeal and petition of appeal out of time. An affidavit deposed by the applicant braces the application. From this affidavit it is deciphered that the applicant is aggrieved by the decision of the District Court of Iramba in Criminal Case No. 71 of 2021 that convicted him of unlawful trafficking in narcotic drugs and sentenced him accordingly. The respondent contested the application. Today the application came for hearing. The respondent was represented by Miss Patricia Mkina Learned State Attorney. The applicant had no representation, He fended for himself. Invited by the court to submit and support of his application, the applicant briefly submitted and prayed that his application be granted as the delay to Page 1 of 4 lodge his notice of appeal and petition of appeal did not sprout from his negligence. Rather, it was because the officer in charge of legal matters at Isanga Prison has travelled. The leave for extension of time for 30 days previously granted to him, lapsed while he was still waiting for the lawyer to return. When the lawyer finally returned, he advised him to reapply for extension of time. In

opposition, Ms Mkina submitted that the application should not be granted as the applicant has shown negligence in the pursuit of his right. He was previously granted leave for extension of time on 9/4/2024. Instead of filing his notice and petition of appeal, he slept over it for about 6 months. Having spent 6 months doing nothing. He returned to this court in November 2024 with the present application. The affidavit is silent on what happened to him. In the absence of any explanation of what he was doing all this time; it is crystal clear that he had no intention to lodge the notice or appeal. For all the 6 months since the grant of an extension of time, he was idle. In the foregoing he prayed that the application be dismissed for want of merit. The applicant rejoined that it is in the interest of justice that his application be granted considering also that he was not furnished with the judgment on time. I have considered the submission from both parties and I will now determine the application. Appeals from convictions and sentences of the district courts lie to this court and are presided by a notice lodged within 10 days from the Page 2 of 4 date of the judgment. The petition of appeal is itself lodged within 45 days of the judgment (see section 361 (l)(a) and (b) of the Criminal Procedure Act Cap 20 R.E 2022). The time may be extended upon a good cause

being demonstrated. Accordingly, the sole issue for determination is whether the applicant has demonstrated a good cause warranting the extension of time. The cardinal principle in determining whether a good cause for extension of time has been demonstrated is as expounded in the case of Losieku Nambari vs Lemomo Mollel (Criminal Appeal No. 566 of 2021) [2024] TZCA 525 TanzLII where it was held that: "It is settled that extension of time is a matter of discretion on the part of the court and that the discretion must be exercised judiciously and flexibly with regard to the relevant facts of the particular case. Admittedly, it has not been possible to lay down an invariable definition of good cause so as to guide the exercise of the court's discretion. Nevertheless, the Court has consistently looked at a number of factors such as the reasons for delay, the duration of the delay, whether the applicant was diligent, the degree of prejudice to the respondent if time is extended, to name but a few. The record shows that after the applicant was convicted and sentenced, he delayed to lodge his notice and petition of appeal. He approached this court with an application for leave for extension of time. As correctly submitted by the learned State Attorney, on 9/4/2024 the applicant was granted by this court a leave to lodge his notice with 10 days and his petition of appeal within 30 days

all reckoned from that date. The applicant did not utilize this Page 3 of 4 time, he came back in November 2024 with the instant application, once again praying for extension of time. It was expected that the applicant would have stated in his affidavit the reasons that prevented him from lodging the notice and the petition of appeal within the extended period, but his affidavit is silent. It also does not show that he was once granted a leave for extension of time. All he has stated is that the delay was occasioned by his dependence on prison authorities. His submission that he was waiting for the lawyer who had travelled is a new invention from the bar as they are nowhere in the affidavit, hence, they attract no weight. For similar reasons, no weight is assigned to his rejoinder that he was not timely supplied with the judgment. In the foregoing of the above, the applicant is found to have failed to account for 6 months between 9/4/2024 and November 2024. Accordingly, he has miserably failed to demonstrate a good cause warranting the extension of time. The application is consequently dismissed for want of a good cause. DATED and DELIVERED at Dodoma this 5th day of March 2025. J. L. MASABO

JUDGE Page 4 of 4