Geofrey Kitundu @ Nalogwa vs Republic (Criminal Application No 32/01 of 2023) [2025] TZCA 1123 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CRIMINAL APPLICATION NO 32/01 OF 2023 GEOFREY KITUNDU @ NALOGWA..............................................APPLICANT VERSUS. THE REPUBLIC ................................................................. RESPONDENT (Application for Extension of time within which to lodge the application for a Review from the Judgment of the Court of Appeal of Tanzania, at Dar es Salam) (Mkuve, Sehel & Kitusi. JJA.’l dated the 29th day of January, 2021 in Criminal Appeal No. 96 of 2018 RULING 10th & 13th October, 2025 MURUKE, J.A.: The applicant, Geofrey Kitundu, has filled present application for extension of time, within which to file review against the decision of the Court dated 29th January, 2021 in Criminal Appeal No. 96 of 2018. The application is brought by way of a Notice of Motion under Rules 10, 48 (1) and 66 (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by an affidavit deposed by the applicant. The respondent neither lodged an affidavit in reply nor written submission opposing the application. i

It is worth insisting that, the position of the law is well settled and clear that, where the respondent does not lodge an affidavit in reply despite being served, it is taken he does not dispute the contents of the applicant's affidavit. See for instance, Ultimate Security (T) Limited v. CHande Ally Lubugile and Others, [2023] TZCA 17332 TANZLII, Finn Von Wurden Petersen v. Arusha District Council [2020] TZCA 167 Tanzlii, and Yokobeti Sanga v. Yohana Sanga [2013] TZCA 2176 TANZLII in which the Court held that: "... it is settled that where the respondent does not Lodge an affidavit in reply despite being served, it is taken that he does not dispute the contents o f the applicant's affidavit. .................. Therefore, the respondent who appears at the hearing without having lodged an affidavit in reply is precluded from matters o f fact, but can challenge the application on matters o f law." The ground upon which the applicant has raised are that:

One, he was not supplied with a copy of the judgment of Court on time, hence occasioned a delay in preparing and forwarding the application for a review within prescribed time. Two, he being a prisoner depended more on the prisoner officers to prepare and forward his application, he is not in control of the situation. At the hearing of the application, the applicant appeared in person without any representation, whereas the respondent Republic was represented by Mr. Amadeus Maliya and Mr. Obeid Kasambala both learned State Attorneys. After Court explaining the contents of affidavit to the applicant and upon being invited to submit on his application, the applicant adopted the Notice of Motion and affidavit in support thereof, then, beseeched the Court to consider his averments in his affidavit in support of the application and see that he has adduced sufficient cause to justify the delay therefore allow the application. In reply, Mr. Amadeus Maliya, learned State Attorney, in the first place declared his stance that he is not supporting the application and submitted that: one, the applicant has not stated in the Notice of Motion or in the

affidavit any error in the face of record to warrant review by the Court. Two, applicant has not counted for days of the delays from the date of decision to the date of filing the present application, insisting that applicant has not countered days of the delay from when give copy on 5th April, 2021 to when he filed first application No. 22/01 of 2021 on 31s t May, 2021 for extension of time to file Revision that he withdrew on 11th July, 2023. Three, equally so the applicant has also failed to account for days of the delay from when given cop of the Judgement on 5th April, 2021 to 30th June, 2022 when he filed second application Criminal Application No. 33/01 of 2022 for extension of time to file revision, which later he withdrew on 11th July, 2022 . In totality, the respondent counsel urged me to dismiss the application for lack of merits. In rejoinder, the applicant just insisted that being in prison he solely depend on Prisoner officers to prepare his document and that he had no control of the situation. He thus, requested the Court to grant his application for him to file review.

Having heard both sides, the issue for my determination is whether the applicant has adduced sufficient cause to warrant the Court to exercise its discretion to extend time. Pursuant to Rule 10 of the Rules, for an application of extension of time to be granted, the applicant is required to show good cause for the delay. The said Rule provides that: "The Court upon good cause shown, extend the time limited by these Rules or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as reference to that time as so extended . " It is also important to underscore here that, under the above cited provisions, what the applicant is required to do is to show good cause for delay to move the Court to grant the application. 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 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 a party, 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 o f point o f law o f sufficient importance such as the illegality o f the decision sought to be challenged. It is also important that in order for 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: "...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." (Emphasis added) Counting of each day of the delay was also stated in the case of Ndorosi Siatoi v. Veredian John (Civil Application No. 161/02 of 2024) [2024] TZCA 1080: "... it was established that, for a good cause to be shown, the applicant must account for each day o f the delayed days and express whether he was

diligently in conducting the matter. See Bushiri Hassan v. Latifa Mashayo, Civil Application No. 2 o f 2007 and Vodacom Foundation v. Commissioner General (TRA), Civil Application No. 107/20 o f 2017(both unreported).'1 In an application for extension of time accounting of each day of the delay was also cemented in the case of Masato Manyama v. Lushamba Village Council (Civil Application No. 274/08 of 2024) [2025] TZCA 34, "...as explained above, the law is settled. In an application for extension o f time each day passed beyond prescribed time has to be acounted 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." According to applicant's affidavit the reason for delay is at paragraph 5, that he was late to be supplied with the copy of the decision of Court delivered on 2n d February, 2021 on 5th April, 2021 after elapse of 60 days thus, he could not file review in time.

In my opinion, the applicant has failed to account for days of the delay as correctly submitted by the learned State Attorney on the following reason:- first, applicant did not give any explanation on what step he took after the date of the decision 2n d February, 2021 until supplied with a copy of the judgment of Court on 5th April, 2021. It was expected applicant to have even written a letter to remind the registrar to be supplied with a copy of the judgment. The copy of the letter could have been attached in the affidavit in support of the Notice of Motion. To the contrary, there is nothing in the affidavit to suggest the same. Second, the applicant, has completely failed to account from when supplied with the copy of the judgment on 5th April, 2021 to the date of filling his first application No. 22/01 of 2021 for extension of time to file revision. Third, equally so, the applicant has not told this Court what was taking place from when given copy of the Judgment on 5th April, 2021 to when he filed his second application No. 33/01 of 2022 on 30th June, 2022. Fourth, there is no counting of days passed from when the applicant withdrew his two application on 11th July, 2023 to when filed present application on 27th July, 2023. Worse enough, applicant has not only pleaded error on the face of the record of the judgment sought to be reviewed, but also he has not even

dared to mentioned in his notice of motion or in the affidavit in support of the application. It worth insisting that application for review before the Court is guided by Rule 66 (1) (a) to (e) of the Court of Appeal Rules, 2009 that provide as follows: The Court may review its Judgment or order, but no application for review shall be entertained except on the following grounds: a. The decision was based on manifest error on the face of the record resulting in the miscarriage of justice. b. A party was wrongly deprived of an opportunity to be heard; c. The court's decision is a nullity; or d. The court had no jurisdiction to entertain the case; e. The judgment was procured illegally, or by fraud or perjury. The principal that in an application for review the applicant must show the grounds/reasons for the intended review as per rule 66 (1) (a) to (e) of the Rules was insisted in the cases of Pantaleo Teresphory v. Republic, TZCA 514; Deogratious Nicholaus @ Jeshi v. Republic, [2015] TZCA 289; Sospeter @ Mabomba v. Republic, [2023] TZCA 17808; Nicholaus Mgonja @ Makaa v. Republic, [2024] TZCA 279 and Boniface Alistedes v. Republic, [2022] TZCA 56 [all TANZLII]. In the latter case, it was held

that the grounds of the intended review were to be express in the notice of motion or affidavit. Failure by the applicant to account days of the delay and by not indicating in the notice motion or in the affidavit grounds for intended review, this Court cannot grant extension of time to file review. In the circumstances, the present application for extension of time is dismissed. It is so ordered. DATED at DAR ES SALAAM this 13th day of October, 2025. The Ruling delivered this 13th day of October, 2025 in the presence of Applicant in person and Mr. Amadeus Maliya, learned State Attorney for the Respondent/Republic and Mr. Nelson Novati, Court Clerk; is hereby certified as a true copy of the original. Z. G. MURUKE JUSTICE OF APPEAL D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL