Justine Hamis Juma Chamashine vs Republic (Criminal Application No. 59/01 of 2023) [2025] TZCA 983 (19 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPLICATION NO. 59/01 OF 2023 JUSTINE HAMIS JUMA CHAMASHINE.........................................APPLICANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Application for extension of time within which to lodge an application for review of the judgment of the Court of Appeal of Tanzania at Morogoro) fJuma. C.3., Mwarija & Makunau. 3.J.A.) dated the 2n d day of May, 2023 in Criminal Appeal No. 669 of 2021 RULING 25th August & 19th Sept, 2025 MKUYE, J.A.: The applicant, Justine Hamis Juma Chamashine, has filed this application seeking extension of time to lodge an application for review against the Judgment of this Court (Juma C.J., Mwarija and Makungu J.J. A.) dated 2/5/2023. The application is brought by way of a notice of motion predicated under rules 10, 48 (1) and 66 (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by an affidavit deponed by the applicant himself. The grounds for the application are that: one, the decision was based on a manifest error on the face of the i

record resulting in the miscarriage of justice, and two, that the failure to file the application in time was caused by the circumstances beyond his control. Briefly, the applicant was arraigned before the High Court of Tanzania at Morogoro for the offence of murder contrary to section 196 of the Penal Code, Cap 16. Upon the conclusion of the trial, he was found guilty, convicted and sentenced to death by hanging. His appeal to this Court was unsuccessful as it was dismissed for lack of merit. Still undaunted, he intends to fault the decision of this Court through review. As he was late to lodge it, he has thus, brought this application for extension of time so that he can be able to do so. When the application was called on for hearing, the applicant appeared in person without any representation whereas the respondent Republic was represented by Mr. Adolf Verandumi, learned Senior State Attorney and both were linked through video conference from Dar es Salaam. On being invited to submit in support of his application, the applicant beseeched the Court to consider his averments in his affidavit in support of the application which he thought to be sufficient to elaborate his application. 2

According to his affidavit, the applicant in paragraph 4 averred that he prepared the application for review on time on 20/6/2023 but the prison authority delayed in filing the same in Court as the same was filed on 4/7/2023 having regard that the decision sought to be impugned was delivered on 2/5/2023. In paragraph 6 of the affidavit, the applicant asserts that, being an inmate who solely depended on the prison authority in all the correspondences, his failure to lodge the application for review in time was therefore beyond his control. It is noteworthy that, in his affidavit the applicant did not expound on the manifest error on the face of the record resulting in the miscarriage of justice as indicated in the notice of motion being among the grounds for the intended review. In reply, Mr. Verandumi, in the first place, declared his stance that he did not support the application. He submitted that, in applications of this nature under rule 10 of the Rules, extension of time is granted if the applicant has shown good cause. He contended that, the applicant's first application which was prepared on 26/6/2023 and filed on 4/7/2023 was struck out for being filed out of time. He contended further that the reason that the said application was attributed to prison authority whom he depended on correspondences and had no control over them is not

supported by any affidavit from prisons officers and thus not sufficient. He referred me to the case of George Senga Mussa v. Republic, [2024] TZCA 984 TAN ZLII where the Court emphasised on the need for the prisons' officer to swear an affidavit to that effect. Mr. Verandumi went on to argue that, the ground of review raised by the applicant of manifest error on the face of the record occasioning miscarriage of justice has not been shown in the affidavit indicating the place in the judgment sought to be impugned. He argued that the appellant's contention that his right was denied is not sufficient to support his application. In this regard, he urged the Court to find that the application has no merit and dismiss it. In rejoinder, the applicant had nothing to add. He left the matter in the hands of the Court to determine it. Having examined the applicants' notice of motion, the supporting affidavit and heard both parties, I find that the issue for this Court's determination is whether the applicant has shown good cause to warrant extension of time. As a general rule, the mandate to grant extension of time is in the discretion of the Court. However, such discretion must be exercised judiciously in accordance to the rules of reason and justice and not according to private opinion or arbitrarily - See: Lyamuya 4

Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania, [2011] T7CA 4 TANZLII. According to this case among the factors to be looked into when considering to grant or not to grant extension of time, include:- (a) The applicant to account for all the period o f delay. (b) The delay should not be Inordinate. (c) The applicant must show diligence, and not apathy negligence or sioppiness in the prosecution o f the action he intends to take. (d) I f the Court feels that there are other sufficient reasons, such as existence o f point o f law o f sufficient importance; such as illegality o f the decision sought to be challenged In the case of Bushiri Hassan v. Latifa Mashayo [2008] TZCA 220 TANZLII, the Court also emphasized that the applicant must account for each day of delay. In this case, the decision sought to be challenged was handed down on 2/5/2023. Ordinarily the application for review ought to have been lodged within a period of 60 days from the date of judgment which was by 1/7/2023. This application was filed 8/11/2023 which was 130 days after the time limit of 60 days. The applicant attributes the delay to the prisons officer who filed it on 4/7/2023. 5

I had an opportunity to examine the attached application for review but what came about is not in tandem with the applicant's contention suggesting that the applicant is not telling the truth. This is so because, the said notice of motion attached to this application bears two different dates, that is, 4/7/2023 and 8/11/2023. While the same shows to have been lodged at Dar es Salaam Registry on 8/11/2023 and signed by the Deputy Registrar, the former date (4/7/2023) is appended in the top left side on the front page of the application. It is, therefore, uncertain as to when the said application for review was presented in Court for filing. I am mindful that the applicant has argued that, he being an inmate, depended on the prison's authorities in all correspondences whom he had no control over them. Mr. Verandumi, while relying on the case of George Senga Mussa (supra) was of a view that mere assertion that the delay was caused by prison authority without a supporting affidavit from those prison's authority was not enough. In the said case the Single Justice while dealing with a similar scenario as it is in this case stated that:- " ... I tend to differ with the learned Senior State Attorney in depending soieiy on the applicant's narration that it is a Prison's personnel who delayed his application for review. I find the 6

applicants averments are bare words not backed up with any affidavit from the prison officials to substantiate it " The Court ruled out that in the absence of supplementary affidavit from prison's officials to substantiate the applicant's contention, no good cause was shown and the application was dismissed. In this case, there is a clear predicament on the part of the applicant for failure to substantiate his assertion by a supplementary affidavit from the prisons officer. It means that the account for the delay is not sufficiently shown. On the other hand, in the application for extension of time to lodge an application for review the applicant must shown the grounds/reasons for the intended review as per ruie 66 (1) (a) to (e) of the Rules - See: Pantaleo Teresphory v. Republic, TZCA 514; Deogratius 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 propounded that the grounds of the intended review were to be express in the notice of motion or affidavit. 7

The applicant stated in the notice of motion that the decision to be challenged was based on a manifest error on the face of the record resulting into miscarriage of justice. This ground is premised under rule 66 (1) (a) of the Rules which states that:- "The Court may review its judgment or order but no application for review shaii be entertained except on the foiiowing grounds:- (a) The decision was based on a manifest error on the face o f the record resulting into a miscarriage o f justice" It means that the Court would not have jurisdiction to review its decision or outside the grounds under rule 66 (1) of the Rules. In relation to the ground based on manifest error on the face of the record, the Court has made a clear guidance that it will not interpret such situation if the ground advanced in support of the application for review fall within among others the error which is to be detected by long process of reasoning. Mr. Verandumi assailed the applicant for not showing such error in the judgment and I agree with him. Much as the applicant stated in the notice of motion that there was an error on the face of the record which resulted into the miscarriage of justice, he did not explain it in the 8

affidavit nor show where in the impugned judgment such an error was occasioned therefore, no justification for the Court to entertain it Since the applicant has failed to account for the delay and given the fact that he has failed to show arguable case in the intended review in the affidavit supporting the notice of motion, there is nothing to warrant the grant of the extension of time sought. In the event, the application is refused and it is dismissed for want of merit. It is so ordered. DATED at DODOMA this 17th day of September, 2025. R. K. MKUYE JUSTICE OF APPEAL The Ruling delivered virtually this 19th day of September, 2025 in the presence of the Applicant in person and Mr. Clemence Kato, learned Senior State Attorney for the Respondent/Republic and Mr. Ladislaus Msuba, Court Clerck, is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 9