Sikitiko Vicent vs Republic (Criminal Appeal No. 854 of 2023) [2026] TZCA 171 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM; KOROSSO. 3.A.. MASHAKA. 3.A. And NGWEMBE. J.A.:^ CRIMINAL APPEAL NO. 854 OF 2023 SIKITIKO VICENT .............................................................. APPELLANT VERSUS THE REPUBLIC ............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Babati) (Barthv. 3.) dated the 11th day of 3uly, 2023 in Criminal Application No. 16 of 2023 JUDGMENT OF THE COURT 12ffi February & 2n d March, 2026 KOROSSO. JA.: Before us is an appeal arising from a decision of the High Court of Tanzania sitting at Manyara, in Criminal Application No. 16 of 2023 (Barthy, J.) which dismissed an application for extension of time to file an appeal against the decision of the District Court of Kiteto, at Kibaya (the trial court) in Criminal Case No. 21 of 2022. The background to the appeal, albeit briefly, is that Sikitiko Vicent, the appellant herein, was arraigned in the trial court and charged with two counts. In the first count, for the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap 16 (the Penal Code). i

It was alleged that on 12/3/2022 at Lerugu village, Kiteto District in Manyara Region, the appellant did have sexual intercourse with SE or the victim (to conceal her identity), a girl aged 13 years, a standard four pupil at Lerugu Primary School. For the second count, the charge was Impregnating a school pupil contrary to section 60A (1) and (3) of the Education Act, Cap 353 as amended by section 22 of Written Laws (Miscellaneous Amendment (No.2) of 2016 (the Education Act). Allegedly, on the same date, time and place as in the first count, the appellant, after having sexual intercourse with the victim, impregnated her. He was convicted on his own plea of guilty to both counts and sentenced to thirty (30) years imprisonment for each count and the sentences were to run concurrently. Aggrieved by the decision of the trial court, the appellant found himself out of time to initiate an appeal, therefore, vide section 361 (1) and (2) [now 382 (1) and (2)] of the Criminal Procedure Act, Cap 20 (the CPA), he lodged an application for extension of time to appeal out of time in the High Court of Tanzania, mentioned above. The reasons founding the application were as follows: one, that he had been in custody from the time he had been convicted and sentenced to serve imprisonment for the offences charged as alluded to above. Two, that, upon being supplied

with the proceedings and judgment of the trial court, the advocate he engaged to prepare and submit petition of appeal had failed to proceed timely due to delay in receiving requisite payment under the circumstances. The High Court Judge deliberated on the reasons advanced and found that the appellant failed to postulate sufficient reasons to justify the delay in filing the appeal on time to move her to exercise her discretion and grant the extension of time sought. She was also of the view that there were no other reasons such as illegality in the decision of the trial court to move her to grant the same and thus dismissed the application. Disgruntled, the appellant is now before the Court faulting the decision of the High Court. Considering the fact that on the day fixed for hearing the appeal, the appellant abandoned the original four grounded memorandum of appeal filed on 29/1/2024, what remains for our determination are four grounds found in the supplementary grounds of appeal lodged on 12/2/2026 and paraphrased essentially address the following three complaints: One, failure to consider that the appellant was a prisoner and thus dependent on prison authority. Two, failure to consider the fact that the appellant was prejudiced and wrongly convicted, and three, non 3

consideration of the fact that under section 363 (now 384) of the CPA, a prisoner is protected when filing appeal or application. At the hearing of the appeal, the appellant appeared in person, fending for himself whereas, the respondent Republic was represented by Mr. Raphael Rwezahula, learned State Attorney. The appellant prefaced his submissions by adopting the supplementary grounds of appeal and the written statement amplifying the said grounds and prayed that his prayers be granted. In his written statement, elucidating on the first complaint, the appellant contended the High Court should have considered the fact that he is a prisoner and dependent on prison authorities. Therefore, should have applied a humanitarian approach and found that he had advanced sufficient reasons to explain the delay and grant his prayers for extension of time to file an appeal instead of dismissing his application without considering he had followed due process as provided under section 382 (1) and (2) of the CPA. According to the appellant, he had averred in the affidavit supporting the application that he had shown intention to lodge the appeal and engaged an advocate to prepare his petition of appeal, all this done through the prison office. He explained that, in those circumstances it was

upon the prison authority to follow up on what he had initiated considering as a prisoner and a lay person it was difficult for him to account for each day of delay. He argued that in terms of section 384 of the CPA, the Prisons Authority are responsible for all communications involving those servicing prison sentences, thus, limiting a prisoner's reach or action in processing appeals. He implored us to find that the High Court wrongly dismissed the application and that his prayers be granted. On his part, Mr. Rwezahula commenced his submissions in response to the grounds of appeal expressing the respondent Republic's stance of supporting the appeal. He submitted that this was upon discerning that in dismissing the application for extension of time, the High Court seemed to have overlooked the provisions of section 382 (2) of the CPA. The learned State Attorney contended that the High Court when considering the application before it and while exercising its discretion, it was supposed to bear in mind the well settled guidelines expected to have been actioned by the applicant, including; one, explanation of each day of delay. Two, that the delay was not unreasonable. Three, assess whether the applicant show diligence and not negligence, and four, whether there was illegality in the decision sought to be impugned. According to Mr. Rwezahula, the record of appeal reveals that there was

illegality emanating from the sentence imposed against the appellant and had the High Court Judge considered this fact, she would not have had qualms to grant the extension of time sought by the appellant. The learned State Attorney submitted further that, since the charge sheet showed that the appellant was 18 years at the time, the sentence of thirty years imprisonment imposed on him upon conviction was unlawful under section 131 (2) of the Penal Code. For one convicted of rape but under 18 years old, the said provision imposes corporal punishment for a first offender. The learned State Attorney thus argued that in not considering this factor of illegality in the decision of the trial court when determining the application for extension of time to appeal, the High Court erred. He urged the Court to allow the appeal. The appellant's rejoinder was brief reiterating his submission and prayers advanced earlier. Having heard the submissions from the appellant and the learned State Attorney and gone through the record of appeal, undoubtedly, the issue for our determination is whether the High Court Judge properly exercised her discretion in dismissing the appellant's application for extension of time to appeal out of time. It is well settled that an application for extension of time is entirely in the discretion of the court on whether

or not to grant it. At the same time in line with section 382 (2) of the CPA, where extension of time to appeal out of time to the High Court is sought, the High Court may " for good cause, admit an appeal notwithstanding that the period o f limitation prescribed in the section has elapsed." Conversely, there are no laid down hard and fast rules on what amounts to good cause as this is dependent upon the facts and existing circumstances for each particular case. To determine whether good cause has been established, the Court, in Lyamuya Construction Company Limited v. Board of Trustees of Young Women Christian Association of Tanzania [2011] TZCA 4 TANZLII, framed the following guidelines: - "(a) The applicant must account for all days o f the delay. (b) The delay should not be inordinate. (c) The applicant must show diligence, and not apathy, negligence, or sloppiness in the prosecution of the action that he intends to take. (d) I f the court feels that there are other reasons, such as the existence o fa point oflaw ofsufficient importance, or the Illegality of the decision sought to be challenged."

(See also, Mbogo v. Shah [1968J E A 93, Jacob Shija v. M/S Regent Food & Drinks Limited and Another [2019] TZCA 56, TANZLII and Tanga Cement Company Limited v. Jumanne D. Massanga and another, Civil Application No.6 of 2001 (unreported). Having gone through the affidavit supporting the application before the High Court, while we agree with the High Court findings that the applicant's reason for delay did not fall within the threshold of the established guidelines to lead to condonation of delay such as explaining each day of delay in filing the appeal on time and the required diligence although some efforts were made. However, we are of the view that had the High Court Judge scrutinized the record of appeal further she would have discerned that there was illegality in the impugned decision sought to be challenged by the appellant. The Court has previously held that, illegality need not be proved at this juncture, it should just be discerned. The record of appeal reveals that the trial court convicted the appellant on his own plea of guilty on the two counts for the offences he was charged with and sentenced to thirty years imprisonment for each count with the sentences to run concurrently. However, as argued by the learned State Attorney, since the record shows that at the time of committing the offence, the appellant was eighteen years of age as seen 8

from the charge sheet, the imposed sentence was unlawful. Section 131 (1) and (2) of the Penal Code states: - "131.-(1) Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with a fine, and shall in addition be ordered to pay compensation o f an amount determined by the court, to the person in respect o f whom the offence was committed for the injuries caused to such person. (2) Notwithstanding the provisions of any law, where the offence is committed by a boy who is of the age of eighteen yeais or less, heshaii- (a) if a first offender, be sentenced to corporalpunishment only; (b) if a second time offender, be sentenced to imprisonment for a term of twelve months with corporalpunishment; (c) if a third time and recidivist offender, be sentenced to five years with corporal punishment." [EmphasisAdded] 9

In the case of the Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 182, the Court held that: - "In our view, when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record straight" We have carefully reflected upon the well settled position of the law that when illegality is ascertained in an application for extension of time, courts have a discretion to grant the order sought since it constitutes a good cause. [See, Lyamuya Construction Co. Ltd (supra) and Permanent Secretary, Ministry of Defense and National Service v. Devram Valambhia (supra)]. Moreover, whilst aware that the decision of whether or not to grant the application requires exercise of discretion, with due respect, it is our view that, had the High Court Judge discerned the illegality in the sentence meted to the appellant, being in contravention with the law, she would have arrived at a different finding and granted the appellant's application.

All in all, we are of firm view that there was illegality in the decision sought to be challenged and that it meets the requisite threshold as a good cause for enlargement of time to file an appeal out of time as sought. In the end, the appeal is allowed. The appellant is to file the appeal within sixty days from the date of this judgment. DATED at ARUSHA this 28th day of February, 2026. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 2n d day of March, 2026 in the presence of the Appellant in person, Ms. Neema Mbwana, learned Senior State Attorney for the Respondent/Republic and Mr. Musa Amiry, Court Clerk; is hereby certified as a true copy of the original. ii