Marceline D.O Koivogui vs Republic (Criminal Application No. 28.01 of 2024) [2025] TZCA 1167 (24 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPLICATION NO. 28/01 OF 2024 MARCELINE D/O KOIVOGUI........................................................APPLICANT VERSUS THE REPUBLIC.............................................................. ........ RESPONDENT (Application for Extension of time to file a Review out of time from the Decision of the Court of Appeal of Tanzania at Dar es Salaam) (Muaasha. Ndika. And Korosso, JJ.A/) dated the 20th day of May, 2020 in Criminal Appeal No. 469 of 2017 RULING 10th September, & 24th October, 2025 MAKUNGU. J.A: The applicant through the services of Mr. Hosea Chamba, learned advocate filed a notice of motion under rules 10 and 66 (1), (2), (b), (c) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking an order to extend time to impugn the Court's decision in Criminal Appeal No. 469 of 2017 dated 20th May, 2020, by way of review. The grounds in the notice of motion are as follows: 1. That, the decision was based on the m anifest error on the face o f the record. 2. That, the applicant was deprived o f an opportunity to be heard. i 3. That, the applicant was prejudiced as the tim e spent by the applicant behind bars (in rem and custody since 19/05/2012 up to the conviction on 06/07/2017) was not considered in the sentence . The notice of motion is supported by an affidavit of the applicant. The respondent, on the other hand, did not file his affidavit in reply as required by the Rules. On the day the application was called on for hearing, Mr. Hosea Chamba, learned advocate appeared for the applicant, whereas the respondent Republic enjoyed the services of Ms. Mossie Kaima, learned Senior State Attorney. Mr. Chamba commenced his submission by adopting the notice of motion and the supplementary affidavit filed on 1st September, 2025 by order of the Court of 25th August, 2025. He then briefly submitted that the grounds for the application had been articulated in paragraphs 4 and 5 of the affidavit. He observed that the respondent did not file her affidavit in reply so he believed that all what is stated in the supplementary affidavit is not contested. He prayed the application be granted. Ms. Kaima submitted that, the grounds in the notice of motion are wholly bereft of substance. She argued that the applicant failed to demonstrate the error in the impugned judgment as required by law. She cited the case of Mwita Mhere v. Republic, Criminal Application No. 7 of 2021 (unreported) where the Court stated that the applicant has the duty to point out the error on the face of the record. She added that the sentence of 27 years imposed by the trial court was reduced to 20 years by this Court. For that reason she prayed the application be dismissed. In his rejoinder, Mr. Chamba submitted that the error was clear in the judgment when the Court stated that the applicant shall serve period of twenty years from the date she was convicted. The applicant was supposed to serve the sentence from the date of her arrest, he added. He cited the case of Jubilee Insurance v. Mohamed Sameer Khan, [2022] TZCA 354. In the premises, he prayed as before that the application be granted. I have considered that notice of motion, the affidavit in support thereof and the oral submissions by the counsel of the parties. The main issue for my determination is whether this application is worth to be granted. It is now fairly settled law that in an application for extension of time to file an application for review the applicant must not only satisfy the Court that there is/are sufficient cause (s) for delay but must also indicate under which ground under rule 66 (1) of the Rules his application for review will base if the extension sought is granted. These are the two requirements which must be met in application of this nature. In the case of Hamza Ramadhani @ Burutu @ Suka & Another v. Republic, Criminal Application No. 2 of 2013 (unreported) it was stated: "Rule 10 governing extension o ftim e upon good cause being shown m ust fo r purposes o f extension o f tim e to apply fo r review, relate to the grounds fo r review se t down under ru le 66 ar ks regards the first requirement as already hinted, an extension of time can be granted upon good cause for delay of doing any act has been established. This is so stipulated under rule 10 of the Rufes which reads: "The Court my, upon good cause shown, extend the tim e lim ited by these Rules o r by any decision o f the High Court o r tribu n al fo r the doing o fany act authorized o r required by these Rules, w hether before o r afte r the expiration o f that tim e and whether before o r a fter the doing o f the act, and any reference in these Rules to any such tim e sh a ll be construed as a reference to that tim e as so extended" Taking note of the above, the Court should consider good cause in allowing the application. Moreso, the case of Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, [2011] TZCA 4, the Court echoed factors for consideration in granting of extension of time that is; length of the delay, the reasons for the delay; the degree of prejudice the respondent stands to suffer if time is extended; whether the applicant was diligent, whether there is a point of law of sufficient importance such as the illegality of the decision sought to be challenged. Coming back to the application at hand, the applicant has based application on three grounds. Firstly, she advanced that the decision was based on manifest error on the face of the record. Elaborating on this point, she argued that all exhibits (PI, P2, P3 and P4) were tendered without objection from the defence counsel. Secondly, she pointed out that her right to be heard was curtailed on the account that assessors were not properly directed on the vital point of law in the summing up notes. And lastly, she argued that she was prejudiced as the time she spent behind bars from 2012, before conviction, up to 2016 when she was convicted was not considered in the sentence. For the foregoing reasons advanced by the applicant, I have the view that all three (3) reasons adduced by the applicant fail to meet the threshold laid down in rule 10, read in tandem with the factors provided by the Court in the case of Lyamuya Construction Company Ltd (supra). At first, the fact that exhibits were tendered without objection and failure to consider the time spent by the applicant in custody before conviction does not fall within the parameters of illegalities. The question is what are the consequences for failure to object to the exhibits, as well as failure to consider the time spent by the applicant in remind before conviction. Is the omission fatal to the extent of rendering the decision a nullity? If the answer is no, then the two grounds should not qualify as illegality. In my view both issues were supposed to be raised in the appeal and not this stage. On the denial of the right to be heard, it is settled that once one is deprived of his/her right to be heard, such denial amounts to an illegality which is a sufficient ground for extension of time. However, the alleged illegality should be apparent on the face of the record. In 6 the case of Lyamuya Construction Company Ltd (supra), the Court observed that: "Since every party intending to appeal seeks to challenge the decision either on p oin t o f law or facts it cannot in m y view, be said that in Valam blian's case the court m eant to draw a general rule that every applicant who dem onstrates that h is intended appeal raises points o f law should, as o f right, be granted extension o f tim e if he applies fo r one. The Court there em phasized that su ch a p o in t o f la w m u st be o f s u ffic ie n t im p o rtan ce and, I w o u ld add, th a t i f m u st a lso b e a p p a re n t on th e fa ce o f reco rd , su ch a s th e q u e stio n o f ju ris d ic tio n ; n o t one th a t co u id be d isco ve re d b y a lo n g -d raw n arg u m en t o r p ro c e ss " [Em phasis added\ I subscribe, unreservedly, to the above possession. Applying the above settled position to the instant application, I have no difficulty in holding that the applicant's contention that the decision sought to be challenged is fraught with illegalities is nothing but an unsubstantiated general complaint. Without the details of the alleged illegalities, it is impossible to determine whether the said illegalities are apparent on the face of the record and that they are of sufficient importance to merit the attention of this Court. I would, therefore, reject this argument. In the up short, it is my finding that this matter discloses no good cause for the Court to exercise its powers to enlarge time. Accordingly, I dismiss this application in its entirety. DATED at DODOMA this 23rd day of October, 2025 0. 0. MAKUNGU JUSTICE OF APPEAL Ruling delivered this 24th day of October, 2025 in the presence of Mr. Hosea Chamba, learned counsel for the Applicant and Ms. Winfrida Ouko, learned State Attorney for the Respondent/Republic both through Virtual Court and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 8