CRIMINAL APPEAL NO 195 OF 2022

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA (CORAM: LILA, J.A., KIHWELO, J.A., And ISSA. 3.A.) CRIMINAL APPEAL NO. 195 OF 2022 YUSUPH KALEGEYA......................................................................APPELLANT

VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mashauri, J/) dated the 17th day of August, 2021 in Criminal Revision No. 03 of 2020

JUDGMENT OF THE COURT 25th & 28th February, 2025 LILA, 3.A.: The appellant, Yusuph Kalegeya, is before the Court in his quest to challenge the High Court's decision denying him extension of time to lodge his appeal in the High Court out of time in Criminal Revision No. 03 of 2020 initiated by the High Court suo motu. That move by the High Court and the manner it handled the said application is a subject of this appeal. This matter has a protracted history which has resulted in the appellant, Yusuph Kalegeya losing interest to further pursue it. He manifested this by praying this Court to forget everything that has passed including the appeal and various documents pertaining to this matter and order his release from prison where he has been languishing for about ten (10) years now. Admittedly, the background is long and a bit confusing. But, for the purpose of this appeal, we shall only revisit that part which is relevant only. He was arraigned before the District Court of Chato of the offence of unnatural offence contrary to section 154(1) (a) of the Penal Code Cap 16 of the Laws on 13/02/2015 on which date he pleaded guilty, convicted and was sentenced to life imprisonment. The accusation was that, on 11/2/2015 at about 02:00hrs at Mwabasabi Village within Chato District in Geita Region, he had carnal knowledge of a boy aged thirteen (13) years old whose name we shall withhold

and where necessary refer to him as the victim. He appealed to the High Court of Tanzania, Mwanza Registry in HC Criminal Appeal No. 184 of 2016 challenging that his plea was not unequivocal. The appeal was allowed on the ground that the plea of guilty was faulty hence equivocal and, invoking its revisional powers, the High Court ordered that the record be remitted to Chato District Court for the appellant to face trial. That was on 8/3/2017. Trial was conducted and the appellant was convicted as charged. It appears the appellant was aggrieved and lodged a notice of appeal to the High Court which, upon perusing the record, found copies of the judgment and proceedings were missing. Consequently, the record was, again, remitted to the District Court for it to compose a judgment and avail the High Court with both the copy of judgment and proceedings. When that was done, it was realized that the notice of appeal lodged by the appellant was time barred. What followed thereafter is really startling. The High Court, suo motu, initiated Criminal Revision No. 62 of 2020. Parties were heard on 30/06/2021. Relevant to this appeal in the applicant's arguments found at page 7 of the proceedings in the revisional application was that: - "M y a p p e a l is o u t o f tim e. I p ra y to be a llo w e d to a p p e a l to th is co u rt o u t o f tim e. This is m y sole application in this court.

I don't have any other application. I was late to file my appeal because I was given copy o fjudgm ent late../'(Emphasis added) On the part of the respondent Republic, represented by Ms. Ajuaye, learned State Attorney, this was part of her submission as found at page 8 of the proceedings: - "...Since this purported Revision has been initiated by the court, if this court deems fit, le t th e a p p lica n t be a d vise d to File h is a p p lica tio n fo r le a ve to a p p ea l o u t o f tim e upon g iv in g s u ffic ie n t reason s / ' (Emphasis added) After hearing the parties, the High Court, rendered its ruling, a subject of this appeal, on 17/8/2021. The High Court was categorically clear in that ruling that the Revision Application was suo motu initiated by the court stating that: - HFollowing a request to the DR by the RO, this revision was opened suo motu in this court. There is therefore no affidavit nor chamber summons as well as any application for revision which was filed in this court by the purported applicant, the accused. The issue is whether the application for leave to appeal or to file revision out o f time is grantable. H avin g c a re fu lly gone through th e evid ence on record, I am hastened to answer that issue in the negative. It is cardinal principle a t law that, an a p p lica tio n fo r le a ve to a p p e a l o u t o f tim e is g ran ta b ie w here th

e in te n d e d a p p e a l h as an overw helm ing chance o f su ccess In this sort o f application, the evidence against the accused is cogent.... "(Emphasis added) The learned Judge then considered the evidence on record against the appellant and ultimately held that: - "Looking a t the event, th is p u rp o rte d a p p lica tio n fo r le a ve to file an a p p e a l o u t o f tim e against the judgm ent o f the D istrict Court o f Chato is d ism isse d fo r w an t o f s u ffic ie n t reason s to p u rsu e an a p p e a l in th e H igh C o u rt o u t o f tim e ." (Emphasis added) The appellant was aggrieved by the ruling, hence the present appeal. He has advanced three (3) grounds. However, our serious examination of the record, the above chronological events and the manner the matter was handled, raised our concern to which we engaged both sides on the propriety of what transpired before the High Court, due regard being on the propriety of the initiatives taken by the High Court to initiate Criminal Revision No. 03 of 2020 and its determination. We firmly think these issues are decisive of this appeal. Being legal issues and understandably that the appellant is a layperson with no legal knowledge, we had no benefit of any substantial and material contribution from him worth being considered as, to him, his prayer to be set free took precedence. In the circumstances of this

matter, Ms. Verediana Mlenza who was assisted by Ms. Luciana Shabani, both learned Senior State Attorneys, in representing the respondent Republic, exhibiting her knowledge and experience, expressed her dissatisfaction with the manner the revision application was initiated by the High Court suo motu which was later treated as an application for leave to appeal out of time. It was her strong view that, after the appellant had realized that his appeal was out of time, he ought to have personally applied for extension of time to lodge it instead of the High Court taking up the matter itself and determining it in the manner it did. It was her view that it was the appellant who ought to have moved the High Court by way of an application for extension of time to lodge an appeal out of time and that the learned Judge ought to have taken up the advice or proposal made by the learned State Attorney who appeared on the hearing date. We have given due consideration to the learned Senior State Attorney's arguments. In deliberating the first issue, our starting point should be to consider the mandate of the High Court in criminal cases regard being to its powers of revision. Section 44(l)(a) of the Magistrates' Court Act, Chapter 11 of our laws (the MCA) is relevant in that respect. It provides: - "44(1). In addition to any other powers in that behalf conferred upon the High Court, the High

Court - (a) Shall exercise general powers o f supervision over a ll district courts and courts o f resident m agistrates and may, a t any time, call for and inspect or direct the inspection o f the records o f such courts and give such directions as it considers may be necessary in the interest o f justice, and a ii such courts shall comply with such direction without undue delay. Other powers of the High Court contemplated under section 44(1) of the MCA is the power to extend time to admit an appeal out of time under section 361(2) of the Criminal Procedure Act, Chapter 20 of our Laws (the CPA). Such power is, however, conditional as the section provides that: - n(2) The High Court may\ for good cause, adm it an appeal notwithstanding that the period o f lim itation prescribed in this section has elapsed." As regards powers of revision of the High Court, section 372(1) of the CPA, in clear words, provides that: - "372(1) The High Court may call for and examine the record o f any crim inal proceedings before any subordinate court for the purpose o f satisfying itse lf as to the correctness, legality or propriety o f any finding, sentence or order recorded or passed, and as to the regularity o f any proceedings o f any subordinate court." With regard to the rights of parties to be heard during hearing of revision application, section 374 of the CPA stipulates that: - 11No party

has any right to be heard either personally or by advocate before the High Court when exercising its power o f revision; save that the court may, if it thinks fit when exercising such powers, hear any party either personally or by advocate, and that nothing in this section shall be deemed to affect subsection (2) o f section 373." It is abundantly clear, in all these cited provisions, that the High Court has powers to revise proceedings of subordinate courts or direct a revision be initiated upon discovery, when exercising its powers of supervision, of an illegality or irregularities in the proceedings. And, in the case of Peter Michael Madeleka vs Republic, Criminal Appeal No. 263 of 2022 (unreported), the Court made it clear that the High Court may also be moved by a party by way of an application to call for and examine the proceedings of the trial court with a view to satisfying itself as to its legality. In the instant case, it appears the High Court initiated revision application suo motu on a matter that was in the High Court. In the light of the provisions above quoted, the High Court has no such power. This is, essentially, the gist of section 373 of the CPA which stipulates that: - "373(1) In th e case o f a n y p ro ceed in g s in a su b o rd in ate co u rt, th e re co rd o f w hich h a s been c a iie d fo r o r w hich h as been re p o rte d fo r o rd e rs o r w hich

o th e rw ise com es to its know ledge, the High Court may- (a) In the case o f conviction, exercise any o f the powers conferred on it as a court o f appeal by sections 366, 368 and 369 and may enhance the sentence; or (b) In the case o f any other order other than an order o f acquittal, alter or reverse such order, save that fo r purposes o f this paragraph a special finding under subsection (1) o f section 219 o f this A ct shall be deemed not to be an order o f acquittal." (Emphasis added) In the light of these provisions of the law, it is obvious that the High Court strayed into error to, suo motu, initiate Criminal Revision No. 03 of 2020 because it related to a matter that was before it and did not arise from the proceedings of the subordinate courts when exercising its powers of inspection/supervision or on an application by the appellant in respect of a matter which is before the subordinate court. Moving to the second issue, we entirely agree with Ms. Mlenza that the High Court wrongly determined matters that were to be determined by the High Court in the intended appeal. Even assuming that the application for leave to lodge an appeal out of time was properly initiated before the High Court, it would still be not proper for the learned Judge to determine the merits of the intended appeal in the disguise of determining whether the intended appeal had

overwhelming chances of success in the course of determining the application for extension of time. After all, such factor has longtime been forgotten as being the basis for the court to exercise its discretion to either grant or not extension of time because its consideration amounts to predetermination of the appeal. The requisite condition for grant of extension is to show good cause for delay for every day of delay. The Court pronounced itself so in a number of its decisions including Moroga Mwita Moroga vs Republic, Criminal Appeal No. 181 of 2020, The Registered Trustees of Kanisa la Pentekoste Mbeya vs Lamson Sikazwe and Four Others, Civil Application No. 191/06 of 2019, Wambele Mtumwa Shahame vs Mohamed Hamis, Civil Reference No. 8 of 2016 and Gibb Eastern Africa Ltd vs Syscon Builders Ltd and Two Others, Civil Application No. 5 of 2005 (all unreported). For clarity, in refraining to take the course like the one taken by the learned Judge in this case, in the latter case of Gibb Eastern Africa Ltd, the Court quoted an excerpt from the Court's decision in Chrisant Majiyatanga Mzindakaya and Gilbert Louis Ngua, Civil Application No. MB. 2 of 1981 where it was stated that: - "The question arises whether the intended appeal stands a reasonable chance o f success. In answering this question, I am not required to re-evaluate the evidence adduced in support o f the petition

since that is the work o f the Court o f Appeal when actually hearing a first appeal. I am not hearing the intended appeal in these proceedings... " To wrap up it all, in Shant vs Hindocha (1973) EA 2007, the defunct East African Court of Appeal made it clearer the position that: - "The p o sitio n o f an a p p lica tio n fo r exten sio n o f tim e is e n tire ly d iffe re n t from an a p p lica tio n fo r le a ve to appeal. H e is concerned w ith sh o w in g "su ffic ie n t re a so n " w hy he sh o u ld be g ive n m ore tim e and the m ost persuasive reason he can show is that the delay has not been caused or contributed to by dilatory conduct on his part. But there may be other reasons and these are a ll m atters o f degree. H e does n o t n e ce ssa rily have to sh o w th a t h is a p p e a l h as a reason able p ro sp e ct o f su ccess or even that he has an arguable case." (Emphasis added). In line with the above settled position, it behooves us therefore to hold, as we do, that even if the application was properly before the High Court, the decision could still not stand for a reason that the learned Judge flawed to engage himself in evaluating the evidence on record and make a finding that the intended appeal stood no chance of success and thereby dismiss the application. We accordingly nullify the High Court proceedings in Criminal Revision No. 03 of 2020 and set aside

the order denying the appellant extension of time. In the circumstances, we are inclined to agree and go by the view taken by Ms. Mlenza that the High Court ought to have taken the course proposed by Ms. Ajuaye that the appellant should have been advised to lodge an application for extension of time to lodge his appeal out of time. Much as we sympathize with the appellant because the matter has taken too long in court, that is the only available route he has to follow or abide to. In fine, we allow the appeal for the reasons stated. If the appellant still wishes to exercise his right of appeal to the High Court against the decision of Chato District Court, he has to seek and be granted extension of time to do so before the High Court. DATED at MWANZA this 27th day of February, 2025. S. A. LILA

JUSTICE OF APPEAL P. F. KIHWELO

JUSTICE OF APPEAL A. A. ISSA

JUSTICE OF APPEAL The Judgment delivered this 28th day of February, 2025 in the presence of the Appellant in person and Mr. Mr. Christopher Olembile, learned State Attorney for the respondent/Republic is here by certified as a true copy of the original. D. P. KINYWAFU

DEPUTY REGISTRAR

COURT OF APPEAL