YONA ROCK MNYAKA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA MISC. CRIMINAL APPLICATION NO. 15997 OF 2024 (Arising from the decision of Bahi District Court at Bahi in Criminal Case No. 68 of 2023 before Hon. A.M Msangi, RM) YONA ROCK MNYAKA……….…………………………………………………APPLICANT

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

RULING Date Of Last Order: 23rd September, 2024. Date Of Ruling: 1st November, 2024. E.E. KAKOLAKI, J. The Applicant herein moved this court through a chamber summons under section 361 (2) of the Criminal Procedure Act, Cap 20 R. E. 2002, supported by affidavit duly sworn by the applicant himself to extend him with time within which to file an appeal out of time against the decision of Bahi District Court at Bahi in Criminal Case No. 68 of 2023, delivered on the 21 st day of September 2023. 1 Briefly as gathered from his affidavit, before the District Court of Bahi in Criminal Case No. 68 of 2023 the applicant was charged and convicted with two counts of Armed Robbery Contrary 287A and Grievous Harm, contrary to section 223, both under the Penal Code, [Cap. 16 R.E 2022] and sentenced to thirty (30) years and a one (1) year imprisonment respectively in its judgment handed down on the 21st day of September, 2023. Aggrieved with the decision says, when entering Isanga Central Prison Dodoma he expressed his intention to appeal to the prison officer incharge who provided him with the necessary materials for requesting for the copies of judgment and proceedings and prepared his Notice of intention to appeal which he handed to the concerned authority ready to be transmitted to the Court for filing. Since all correspondences are done by the prison authority the applicant disowns any

liability in any event of delay in filing the said Notice of appeal as he submitted his Notice in time at the admission office and his control of the process terminated there. It is from that reason he claims this application is preferred for extension of time so as to enable him to challenge the decision of the District Court of Bahi. On her side the Respondent filed a counter affidavit duly sworn by Ms. 2 Magreth Robert Fyumagwa, State Attorney in contest of the application admitting only one fact that, the applicant is serving his sentence at Isanga Central Prison since when he was convicted and sentenced. It is the respondent’s contention that, the applicant failed to provide evidence demonstrating that the requisite documents were prepared and submitted to the Isanga Prison officer in charge for filing in court as alleged hence failed to account for the delayed period of time. At the hearing of the application, the applicant appeared pro se, while the Respondent represented by Ms. Rachel Cosmas, learned State Attorney and both parties were heard viva voce. Prosecuting his application the applicant informed the court that his failure to file the appeal on time was due to confusion and difficulties in engaging and communicating effectively with his fellow inmates, which led him to missing the deadline. He confessed to be unaware of the proper procedure for issuing a notice

of appeal, the result of which he had to prefer the current application. He respectfully requested this Court to have his application allowed on those grounds. In response, Ms. Cosmas, requested the court to adopt the counter affidavit to form part of her submission in contest of the application. Having so done 3 she contented, from what is garnered from applicant’s affidavit in support of the application, there is no good cause demonstrated by him justifying the delay of more than 240 days in filing the intended appeal. She argued, the contention by the applicant that he notified the prison officer and submitted the Notice of appeal timely to the prison officer incharge without any proof by affidavit from either the said officer or prison authority does not constitute good cause for extension of time. She was insistent that, under section 361 (1) of the Criminal Procedure Act, the applicant ought to have filed a notice of appeal within 10 days and the petition of appeal within 45 days from the date of the impugned decision, but failed to do so timely hence the present application for extension of time. According to her as a matter of law extension of time is not applicant’s automatic right as the Court has discretion to either grant the same or refuse to do depending on the materials supplied before it. Since in this matter the applicant failed to demonstrate good cause for

extension of time Ms. Fyumagwa argued, the application deserves dismissal which prayer she advanced to the Court. The applicant had nothing material to rejoin apart from praying to court to consider his application and grant it. 4 Having dispassionately considered both parties’ submission. Primarily it is applicant’s duty in application of this nature to establish a “good and/or reasonable cause” sufficient enough to enable the Court exercise its discretion judiciously to either grant extension or refuse to do so depending on the materials advanced before the Court as it was held in the case of KALUNGA AND COMPANY ADVOCATES Vs. NATIONAL BANK OF COMMERCE LIMITED [2006] TLR 235 at page 235 where the Court of Appeal had the following observation to make: ” …the court has a wide discretion to extend time where the time has already expired, but where there is inaction or delay on the part of the Applicant, there ought to be some kind of explanation or material upon which the court may exercise the discretion given.” It is also worth noting, that what amounts to good or sufficient cause, the law does not exhaustively define it since that depends on the materials presented before the Court justifying the delayed period of time or explaining other reasons as to why the Court should grant the sought extension. In Tanga Cement Company Limited Vs. Masanga and Amos A. Mwalwanda, Civil

Application No. 6 Of 2001 (CAT-unreported), the Court on what amount to sufficient cause had the following to say: 5 “What amounts to sufficient cause had not been defined. From decided cases a number of factors have to be taken into account, including whether or not the application has been brought promptly, the absence of any valid explanation for delay, lack of diligence on part of the applicant.” In the Case of Lyamuya Construction Co. Ltd. Vs. Board Oo Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (CAT-unreported) the Court of Appeal further expounded on factors or grounds upon which grant extension of time can be entered by the Court to include the length of the delay, whether the delay has been adequately explained, the Applicant’s diligence, and the presence of any illegality in the impugned decision. Having the above principles in mind, the only issue for determination before the court in the present matter is whether the applicant has sufficiently demonstrated good cause warranting this Court exercise its discretion in granting him extension of time. From his affidavit and submission, the grounds put forward by the Applicant in justifying the delay in filing the appeal are two. First that, the delay was due to his reliance on the Prison officers to forward his prepared Notice of appeal to the Court that turned

out 6 to be a loose hope and second that, he was unable to intermingle with his fellow prisoners hence remained ignorant of the law and the necessary procedure for filing the appeal. To start with the first ground as submitted by Ms. Fyumagwa the submission which I endorse, the applicant’s contention that he expressed his intention to appeal against the entire decision of the said District Court to the prison officer in charge and that he promptly prepared the said Notice and handed it to him/her for transmission to court is not well founded. I hold that opinion as the settled law is that, where an averment in the affidavit is mentioning another person, it remains a hearsay unless the facts deposed therein are exhibited by the person so mentioned in the affidavit. This position of the law was taken in the case of NBC Ltd Vs. Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002 (CATunreported), where the Court of Appeal categorically stated that: ’’…an affidavit which mentions another person is hearsay unless that other person swears as well.’’ See also the case of Benedict Kimwaga Vs. Principal Secretary Ministry of Health, Civil Application No. 31 of 2000 (CAT-unreported). In this matter since the applicant in his affidavit in support of the application 7 mentioned the prison officer for Isanga Central Prison to be the person whom he indicated his

intention to appeal and later on handed to his Notice of the intention to appeal for the purposes of filing it in Court, but failed to cause him to swear an affidavit in support of those facts, I hold the said deposed facts therein remain a hearsay and therefore cannot support the application. As there is no proof that the applicant indicated his intention to appeal and handed the prepared Notice to the Prison officer incharge as alleged, this Court is of the strong findings that he has failed to demonstrate sufficient reasons or good cause justifying the delay of more than 240 days from 21/09/2023 when the decision was delivered to 02/07/2024 when this application was filed in court. As regard to the second reason of applicant’s ignorance of law and its attendant rules of procedure, I wish to pronounce clearly that ignorance has never been accepted as a sufficient reason for extension of time. See the decision of Hamimu Hamis Totoro @ Zungu Pablo and 2 Others Vs. R, Criminal Application No. 121/07 of 2018 and Omari R. Ibrahim v. Ndege Commercial Services LTD, Civil Application No. 83/01 of 2020 (Both CAT) Tanzlii. In Hamimu Hamis Totoro @ Zungu Pablo and 2 Others (supra) the Court had the following observation to make: 8 ’’… the issue is whether ignorance of law constitutes a good cause for extension of time. There is a plethora of authorities to the effect that ignorance of

law has never been a good cause for granting extension of time.’’ That said, this ground is also devoid of merits and I disregard it. In the circumstances and for the foregoing, I find the whole application lacking in merit as the applicant has failed to demonstrate good or reasonable cause warranting this Court extend him time as prayed. Consequently, the application is dismissed for want of merit. It is so ordered. Dated at Dodoma this 01st day of November, 2024. E. E. KAKOLAKI

JUGDE 01/11/2024. Court: The ruling has been delivered at Dodoma today on 01 st day of November, 2024, in the presence of the applicant in person, Ms. Jackline Manyala, State Attorney for the Respondent and Ms. Veradina Matikila, Court clerk. Right of appeal explained. 9 E. E. KAKOLAKI

JUGDE 01/11/2024. 10