Khamis Nuru vs Republic (Criminal Application No 5496217 of 2025) [2025] TZCA 1182 (13 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPLICATION NO 5496217 OF 2025 KHAMIS N U R U ....................................................................APPLICANT VERSUS THE REPUBLIC .............. ............................ ................... RESPONDENT (Application arising from the Ruling of the High Court of Tanzania, Manyara Sub registry at Babati) fKahvoza. 3 / 1 dated the 11th October, 2024 in Misc. Criminal Application No. 18615 of 2024 RULING 7th & 13th November, 2025 MURUKE. J.A.: At Babati District Court, the applicant, Hamis Nuru, was charged with an offence of unlawful possession of government trophy, convicted and sentenced to serve 20 years imprisonment on 15.12.2023. Being dissatisfied, he intended to file an appeal to the High Court but find himself out of time, thus, filed Misc. Criminal application No 18237 of 2024, on 13.02.2024 for extension of time within which to appeal, same was dismissed on 11.10. 2024, for lack of sufficient cause. i Following first application dismissal, the applicant is before this Court, being a second bite application for enlargement of time to file appeal. Same is supported by an affidavit sworn by the applicant himself accompanied by another affidavit sworn by Mr. Nahman Waziri Koko, a prisoner officer incharge, Babati Prison. On the other side, the respondent filed affidavit in reply sworn by Mr. Rafael Rwezaula, learned State Attorney to contest the application. From the nature of this application, and for the reason to be explained later, it is worth reproducing the two affidavits supporting the application. The first affidavit is that of the applicant himself, containing five paragraphs, same read as follows: 1. That I am the resident of Minjingu in Babati District. 2. That I am a prisoner in Babati Prison, 3. That, while in prison on 10/2/2024 I was transferred to Karanga centrai prison so that I could attend medical treatment at KCMC hospital\ on I was transferred back 15/06/2024 to Babati prison. 4. That, on 20/06/ 2023,1 started process my appeal though it was out o f time but in reality it was the time when I felt recovery and I lodged my first application which was dismissed. 5. That following the situation o f being transferred I did not get copies o f proceedings on time. The applicant also attached the affidavit of Babati District Prisoner officer In charge, Mr. Nahaman Waziri Koko that reads as follows: 1. That I am the resident o f Mrara street at Babati. 2. That I am the officer in charge o f Babati District Prisoner. 3. That Hamis Nuru is the prisoner in Babati Prison whom I know. 4. That after he was admitted in prison on 15/12/2023 he was transferred to Karanga centra! prison onl0/02/ 2024 sot that he could be able to attend medical treatment at KCMC hospital. 5. That, following the situation o f being transferred in different places he then delayed to get copies ofjudgment. At the hearing of the application before me, Mr. Rafaeii Rwezaula, learned State Attorney, appeared representing the respondent/ Republic. The applicant was in person not represented. Upon being called to submit on his application, the applicant at first adopted the Notice of Motion and the supporting affidavit to form part of his oral argument. As to why he delayed to file the appeal, he said he was transferred to Karanga central prison from Babati prison to attend treatment at KCMC Hospital at Moshi and further that, his first application was refused by the High Court. Upon being explained by the Court the contents of paragraph 4 of his affidavit in Kiswahili, the language conversant to him, the applicant insisted that the cause of delay is the sickness he had. With that short submission the applicant beseeched the Court to allow his application for extension of time to file appeal at the High Court. On his part, the learned State Attorney for the respondent, at the outset informed the Court that the applicant has not adduced sufficient cause to warrant extension sought to file appeal. In respect of counting of the entire period of delay, respondent's counsel submitted that the applicant has not accounted for the entire period as reflected in paragraph 4 and 5 of the affidavit in reply. Amplifying further, the respondent's counsel reiterated content of paragraph 4 of the reply affidavit and submitted that, one the applicant has not accounted days of the delay from when he was convicted on 15.12.2023, to when he filed his first application for extension of time on 13.02.2024, Two; the applicant has failed to also account for days of the delay from when his first application was dismissed on 11.10.2024 to 19.06.2025, when he filed the present application. Three; the applicant has not attached any medical document to prove that indeed he was attending hospital, referring the Court to the case of Benjamin Amon vs Republic, Criminal application No. 106/11 of 2018, (2020) TZCA, 335 on need to attach medical report to the affidavit in support of the application. Four; the applicant has demonstrated pure negligence on his part, thus, no sufficient reason adduced to move the Court to grant the extension sought. In totality, in the respective nature of the grounds raised by the applicant in support of the application for extension of time, the applicant must well show diligence, and not negligence or in action on the prosecution of the action that intend to take, insisted learned state Attorney. Conversely, the respondent counsel prayed for dismissal of the application. In a short rejoinder the applicant insisted that, he be granted extension of time to file appeal at the High court on the reason of sickness. Having heard both sides, the issue for determination before me is whether the applicant has adduced sufficient cause to warrant this Court to exercise its discretion to extend time. To begin with, I feel it is instructive to reiterate, as a matter of general principle that whether to grant or refuse an application for extension of time is entirely in the discretion of the Court. However, that discretion is judicial and so it must be exercised according to the rules of reason. In exercising its discretion, of whether or not to grant extension of time, the Court is required to consider the following factors which may not be exhaustive, but at the moment they include, that: (a) Accounting all period o f delay; (b) Delay should not be inordinate; (c) The applicant must show diligence and not negligence or sloppiness o f the action that he intends to take; (d) I f the Court sees that, there are other sufficient reasons, such as existence of point o f law o f sufficient importance such as the illegality o f the decision sought to be challenged. It is also important to underscore here that, in an application of for extension of time, what the applicant is required to do is to show good cause for delay to move the Court to extend time. This stance has been taken in a number of decisions which include the case of Kalunga & Company Advocate v. National Bank of Commerce Limited, (2006) T.L.R 235. In an application for extension of time to succeed, the applicant has to account for each day of the delay, however slight it may be. In the case of Bushiri Hassani v. Latifa Lukio Mashayo (Civil Application No. 3 of 2007) [2008] TZCA 220 the Court stated that: 6 "...Delay o f even a single day, has to be accounted for otherwise there would be no point o f having ruies prescribing periods within which certain steps have to be taken. "(Emphasis added) Accounting for each day of the delay in an application for extension of time was also cemented in the case of Masato Manyama v. Lushamba Village Council (Civil Application No. 274/08 of 2024) [2025] TZCA 34 that; "...as explained above , the iaw is settled. In an application for extension of time each day passed beyond prescribed time has to be counted for. In the case o f Bushiri Hassan v. Latifa Lukio Mashayo, and application No. 3 o f 2007 (unreported) Court stressed that: "Delay, o f even a single day, has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken ." Having exposed the position of the law on principles governing extension of time, it is now time to revert to the facts of the case. In the case at hand, the judgment sought to be challenged, upon extension of time being granted, was delivered on 15. 12. 2023, when the applicant was convicted in his presence by the trial court. The applicant filed Misc Civil application No 18615 of 2024 on 03.07. 2024, for extension of time, within which to file appeal, and it was dismissed on 11. 10. 2024. Clearly, there is no accounting of days of delay from 15. 12. 2023, when convicted to when the applicant filed his first application on 03. 07. 2024, a period of more than 7 months. Two; the applicant has filed present application on 19.06. 2025, being after more than 8 months from when his first application was refused on 11. 10.2024, the same has not been accounted for. Three; the present application has been filed after more than 1 8 months from the date that applicant was convicted and sentenced on 1 5 * 12. 2023. The applicant has failed to account what was taking place on each date from the date he was convicted and sentenced to the date of filing present application on 09.06.2025. Promptness is a matter of necessity in law of limitation, because each day passed beyond prescribed time counts, and it has to be accounted for. Four; the applicant has averred at paragraph 4 of his affidavit in support of the application that: on 20.06.2023, he stated the process of appeal after recovery and logged his first application that ended being dismissed. Surprisingly, the date mentioned of 20. 06. 2023, the applicant was not convicted yet. Even when prompted by the Court on the contents s of his affidavit at paragraph 4 above, he still insisted that it is the time he started appeal process after recovery. Whereas on the affidavit of Babati Prisoner officer in charge, Mr Nahman Waziri Koko at paragraph 4, he deposed that the applicant was received in prison on 15.12. 2023, the date of his conviction. Five; the applicant has raised the issue of sickness and that he was transferred to Karanga Central prison to attend treatment at K.C.M.C hospital on 10.02. 2024 and on 15.06. 2024, was transferred back to Babati prison. However, the applicant has not attached any medical document to prove that he was being treated at K.C.M.C, as correctly submitted by the learned State Attorney. Legally, an affidavit being sworn evidence reduced into writings, needs attachment to prove facts alleged like medical chit. Bare assertion, like what the applicant has deposed in his affidavit, cannot be accepted. In the case cited by the learned State Attorney, of Benjamini Amon vs The Republic, supra, the Court at page 7 held that: "To succeed on that point, the applicant should have indicated the same in his supporting affidavit and furnish proof o f ii/ness and medical chits in relation to the period of delay. None has been placed before the court and the applicant's claim remains to be a bare assertion incapable o f having evidenciai vaiue to persuade the Court to exercise its discretion under Rule 10 of the Ruies." In totality, the applicant has not proved that he delayed because of sickness, and more so, he has failed to account for days of the delay. Accordingly, the application is dismissed for lack of sufficient cause. DATED at DODOMA this 12th day of November, 2025. Z. G. MURUKE JUSTICE OF APPEAL Ruling delivered virtually this 13th day of November, 2025 in the presence of the Applicant in person from Babati Prison, Mr, Rafaeli Rwezaula, learned State Attorney for the Respondent/Republic from Manyara and Ms. Rehema Makakala, Court clerk, is hereby certified as a true copy of the original. 10