Omary Makunja vs Republic (Criminal Application No. 88 of 2018) [2019] TZCA 225 (18 July 2019)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CRIMINAL APPLICATION NO, 88 OF 2018 OMARY MAKUNJA APPLICANT VERSUS THE REPUBLIC REPUBLIC (Application for extension of time within which to apply for review from the decision of the Court of Appeal of Tanzania at Dar es Salaam) (Kileo. Bwana & Mjasiri. JJA.) dated the 19h day ofAugust, 2014 tn Criminal Appeal No. 250 of 2013 RULING The applicant Omary Makunja was charged in the Resident Magistrate's Court of Kinondoni with the offence of armed robbery contrary to section 287 A of the Penal Code. He was convicted and was sentenced to thifi (30) years imprisonment. His appeal before the High Court was not successful. Undaunted, he appealed to this Court but again the appeal was dismissed on 251812014. 1 10th & 18th luly, 2019 KWARIKO, J.A.: The applicant still wants to challenge the decision of the Coutt by way of a review. He was however, late to file that application hence this application for extension of time to do so. This application is by way of a notice of motion taken under Rules 10 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). summarized two grounds: - 1. That, the judgment of the Couft was illegal because it was based on the case where the applicant was not given opportunity to be heard. 2. Tha| the decision of the Couft was based on a manifest error on the face of the record resulting in the miscarriage of justice. essentially states the reasons for his delay as summarized hereunder: - 1. That, the applicantb mother who was assisting the applicant in his case died and he received the news on 25/9/2017 when the period to apply for the review had elapsed. 2 The notice of motion has been predicated upon the following In the affidavit supporting the notice of motion, the applicant 2. That, the applicant had also filed Criminal Application No. 63/01 of 2017 for extension of time to apply for review which was struck out on 17/7/2018 for being incompetent. The respondent Republic did not file any affidavit in reply. When the application was called upon for hearing, the applicant appeared personally, unrepresented, whereas the respondent Republic was represented by Ms. Esther Kyara, learned Senior State Attorney. In arguing the application, the applicant first adopted his notice of motion and the supporting affidavit to form part of his oral submission. His fufther explanation was repetition of the averments contained in his affidavit. He urged the Court to grant his application. On her part, Ms. Kyara opposed the application for the following reasons. One, that the applicant has not shown the date he filed Criminal Application No. 63/01 of 2017. Two, the applicant has not proved the death of his mother as there is no any documentary evidence to that effect and thus, he has not shown good cause for the delay. To bolster her contention Ms. Kyara cited the Court's decisions in Jackson Kihili Luhinda and Another v. & Criminal Application No. 1 of 2013 and Dani 3 Upesi and Two Others v. R, Criminal Application No. 21 of 2013 (both unreported). Three, Ms. Kyara argued that the grounds for the intended review are non-meritorious. Firstly, that the Couft decided that the applicant was accorded sufficient opportunity of being heard by the lower court. Secondly, there is no any manifest error apparent on the face of the impugned judgment fit for review. For the foregoing Ms. Kyara implored the Court to dismiss the application. In rejoinder, the applicant submitted that he could not lie about the death of his mother and if given opportunity he could present documentary proof to that effect. Fufther, the prison lawyers told him that they would I have gone through the notice of motion, its supporting affidavit and the submissions for and against the application. With regard to the issue of delay the law is settled that in an application for extension of time to do a certain act, the applicant is required to should show good cause for the delay as per Rule 10 of the Rules. Some of the pronouncements of this Couft in that respect were made in the cases of; Hassan Bushiri v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007; Lyamuya 4 properly expound the grounds for review once this application is granted. Construction Company Ltd v. Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 and Bariki Israel v. R, Criminal Application No. 4 of 2011 (all unrepofted)1. In the case of Hassan Bushiri (supra), the Court said thus: "Delay, of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which ceftain steps have to be taken". [See also Jackson Kihili Luhinda and Dani Upesi (supra)]. That being the legal position, the question to be asked now is whether the applicant has shown good cause for the delay to apply for review. Having considered the applicant's reasons for the delay, I am in full agreement with the learned Senior State Attorney that the applicant has not proved the death of his mother whom he said was assisting to push matters relating to his case. He could have filed affidavit of the person who informed him of the death and also, if not a death certificate, any proof from local area leaders where the applicant's mother lived to prove when she died. This is so because the impugned judgment was given on 5 25l9l20l4 and the applicant alleges that the news of the death of his mother reached him on 251912017. This is a very long delay which requires to be accounted for. Fufther, although the applicant did not state the date on which he filed Criminal Application No. 63/01 of 2017,I have taken judicial notice more than two months from the date the applicant purportedly received the news of the death of his mother. He has not explained this delay. The applicant has not even explained the delay from l7l7l20l8 when the former application was struck out and 619120t8 the date of lodgment of this application. In the case of Shanti v. Hindocha and Others [1973] E.A207, it was held thus: - "The most persuasive reason an applicant for ertension of time can show is that the delay had not been caused or contributed by dilatory conduct on his part." Following that holding, it is clear from what I have explained above that, the applicant has not shown that the delay was caused by any other from the couft registry and found that it was filed on LU7212017. This was 6 factor apart from his inaction. He has therefore failed to account for the delay. To conclude, it has been shown that the applicant has failed to account for the delay. The application thus lacks merit and it is hereby dismissed. Order accordingly. DATED at DAR ES SALAAM this 16h day of July, 2019. M. A. KWARIKO JUSTICE OF APPEAL E D FU P 1 I ceftiff that this is a true copy of the original. ,Z@N ieleffinr-? ( ::=i:' W