Michael Chaula vs The DPP (Criminal Application No. 5507272 of 2025) [2025] TZCA 989 (12 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPLICATION NO. 5507272 OF 2025 MICHAEL CHAULA.......................................... ............................ APPLICANT VERSUS THE DPP ............................ ........................................ ....... RESPONDENT (Application for extension of time to file an application for Revision of the decision of the Court of Appeal of Tanzania at Mbeya) (Lila. Kitusi and Mashaka JJA.) Dated the 22n d day of February, 2023 in Criminal Appeal No. 403 of 2020 RULING 25th August & 12th September, 2025 KOROSSO, J.A.: Before me is an application for extension of time within which to lodge an application for revision of the Judgment of the Court of Appeal of Tanzania in Criminal Appeal No. 403 of 2020. The application is by way of a notice of motion under Rules 10, 48(1) and 65(1) of the Tanzania Court of Appeal Rules, 2019 ("the Rules"). It is supported by an affidavit deponed by Michael Chaula. In the application, the applicant faults the Court's decision in Criminal Appeal No. 403 of 2020, premised on the following grounds: one,

in dismissing Criminal Appeal No. 403 of 2020, the Court overlooked the law. Two, to enable the Court to clarify on the points of law surrounding the entire evidence from the victim and grant requisite remedies. Three, for overlooking violation of section 34B (2) (d) and (f) of the Tanzania Evidence Act, Cap 6 (the Evidence Act) when considering the evidence of the witness who failed to appear found at page 3 of the record of the impugned Judgment; and four, the evidence was insufficient to prove the charges and warrant conviction. The respondent did not resist the application as no affidavit in reply was filed. A brief background to the instant application is that, the applicant was charged and convicted for rape contrary to sections 130(1), (2) (e) and 131(1) of the Penal Code, Cap 16 (the Penal Code) before the District Court of Kyela and was consequently sentenced to serve thirty (30) years imprisonment. Dissatisfied with that decision, he unsuccessfully appealed to the High Court. Unsatisfied, he appealed to the Court of Appeal of Tanzania in Criminal Appeal No. 403 of 2020. However, his appeal was dismissed for lack of merit. Still disgruntled, the applicant decided to apply for Revision of the Court's decision, but found himself, out of time, hence the instant application for extension of time to file for revision out of time.

At the hearing of this application, done through video conferencing facility, the applicant was present and unrepresented, while Mr. Salmin Zuberi, learned State Attorney represented the respondent-Director of Public Prosecution (DPP). Augmenting the grounds founding his application, the applicant was very brief stating that he delayed applying for revision on time because he was sick and he had also received a copy of the impugned judgment very late. He prayed that the application be granted. In response, the learned State Attorney argued that the applicant has failed to establish good cause to condone the delay in applying for revision on time. He insisted that the application be dismissed. The applicant's rejoinder was brief, a reiteration of his prayers and position expounded during his submission in chief. Having heard the arguments from contending sides, the issue for consideration is whether the applicant has met the threshold and demonstrated good cause for the delay to warrant me to exercise my discretion to extend time for him to file his application for revision out of time. Under rule 10 of the Rules, I am endorsed with discretionary powers to extend the time in the instant application particularly, where the

applicant shows good cause for the delay to file his application for revision on time. When exercising the discretionary powers on whether to grant or refuse extension of time, it is well settled by various decisions of the Court that consideration should be on the length of the delay; accounting for each day of delay; the reasons for the applicant's delay; immediate action taken by the applicant soon after the delivery of the decision in action; and degree of prejudice that the respondent may suffer if the application is granted [See, Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Association of Tanzania, Civil Application No. 02 of 2010 [2011] TZCA 513 (3 October 2011) TanzLII). Suffice it to say, the applicant has a duty to illustrate good cause for extension of time to file the application out of time to be granted According to the applicant, the central reason for the delay to file the application for revision on time is the delay to be supplied with a copy of the impugned judgment on time having received the same when the time to file the intended revision had already expired. On his part, the learned State Attorney implored us to find that no good cause for the delay to file the intended application on time have been established and thus dismiss the application for want of merit. A perusal of the record of the application reveals that the impugned judgment of the Court was delivered on 22/2/2023 while the instant

present application was filed on 6th February 2025, more than two years later. In his averments at paragraph 4 of his affidavit supporting the notice of motion, the applicant averred that he was supplied with a copy of the judgment in question on 31/10/2024. Counting from the date the applicant was supplied with a copy of the impugned judgment to the date of filing the instant application, which was on 6th February 2025, about 96 days had elapsed requiring the applicant to account for. The Court has on several occasions insisted on the requirement of counting for every day of delay [See, Bushiri Hassan v. Latifa Lukio, Mashayo, Civil Application No. 3 of 2007 (unreported)]. When we consider the two years the applicant alleged he waited for a copy of the impugned judgment to be supplied, there are still the 96 days from the time he was availed with a copy of the impugned judgment on 31/10/2024 to when the instant application was filed on 06/2/2025 which are not accounted for in the supporting affidavit. This therefore surmises to find, that the applicant failed to account for the 96 days of delaying to file the instant application on time. On the ground of there being illegality in the decision, the law is well settled that claims of illegality or irregularities in impugned decisions can be considered as a good cause for extension of time. In Waheeda

Yakub Sukiman v. Mary Atupele Mungai and Another, Civil Application No. 807/01 of 2023 (unreported), the Court observed that: - "Equally noteworthy is settled law that once illegality o f the impugned decision is successfully pleaded\ it constitutes a sufficient ground for extension o f time, even where no plausible explanation for the delay is given." However, any such claimed illegality must be apparent on the face of the record, not entailing a long, drawn-out process of arguments and the Court need only be satisfied that there exists an issue involving illegality apparent on the face of the record. In the instant application, the alleged illegality is found in the notice of motion, stating that there was irregularity in admission of evidence of a witness who did not appear to testify, and his evidence was admitted under section 34B (2) of the Evidence Act. However, the applicant claims that subsections 2(d) and (f) of section 34B of the Evidence Act were violated. Conversely, to address and determine the said complaint requires assessment of proceedings of the District Court of Kyela (the trial court) that recorded the evidence of witnesses during the trial so as to weigh propriety of the evidence of the witness whose evidence was admitted under section 34B (2) of the Evidence Act to determine whether subsection 2 (d) and (f) of section 34B of the Evidence Act were not

complied with. Furthermore, I have failed to discern the alleged illegality on the face of it through my reading of the impugned decision in Criminal Appeal No. 403 of 2020. Undoubtedly, the alleged illegality requires a long-drawn process as it is not apparent on the face of the impugned decision. In the premises, for the foregoing reasons, I am of the firm view that the applicant has not demonstrated good cause for me to condone delay in filing the application for revision out of time as prayed. All in all, the application stands dismissed. Order Accordingly. DATED at DODOMA this 8th day of September, 2025 The Ruling delivered this 12th day of September, 2025 in the presence of the applicant in person, Ms. Julieth Katabaro, learned Senior State Attorney via virtual Court and Ms. Rehema Makakala, Court Clerk; is hereby certified as a true copy of the original. W. B. KOROSSO JUSTICE OF APPEAL F. W. MTARANIA DEPUTY REGISTRAR COURT OF APPEAL 7 X L -s a .