Moses Mwakasindile vs Republic (Criminal Application No. 5126636 of 2025) [2025] TZCA 990 (12 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPLICATION NO. 5126636 OF 2025 MOSES MWAKASINDILE ................................................ ............. APPLICANT VERSUS THE REPUBLIC ....... ............................................................... RESPONDENT [Application for Extension of Time to file a Review out of time from the Judgment of the Court of Appeal of Tanzania at Mbeya] (Muqasha, Ndika. And Sehel. JJ.A.^ dated the 30th day of August, 2019 in Criminal Appeal No. 15 of 2017 RULING 26th August, & 12th September, 2025 MAKUNGU. J.A: The applicant appeared in person to prosecute this application for extension of time. The application was brought under rules 10 and 48 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules). The applicant is seeking an extension of time to file a review against the Court's decision in Criminal Appeal No. 15 of 2017 (Mugasha, J A , Ndika, J A , and Sehel, J.A.) dated 30th August, 2019. In his affidavit supporting the application, the applicant stated that, the Court of Appeal sitting at Mbeya sustained the sentence of life i

imprisonment imposed by the High Court of Tanzania at Mbeya on 16th December, 2016. He also stated that, he failed to lodge a review in time because he could not receive a copy of the judgment promptly. In addition, he was seriously ill suffering from Parkinson's decease which caused his body paralysis and memory loss and therefore, when he began his recovery, he lodged this application. He asserts that the decision seeks to be reviewed contained manifest error and that the Court erred in upholding the High Court's decision, thereby causing a miscarriage of justice on his part. Submitting in support of the application, the applicant adopted his notice of motion and supporting affidavit. Having made such adoption, the applicant prayed the Court to grant his application. On her part, Ms. Veneranda Masai, learned State Attorney who stood for the respondent, Republic resisted the application. There was no affidavit in reply filed by the respondent. However, she briefly replied that the application has no merit on the reasons that: (i) the applicant failed to state when or the date he received the judgment o f the Court; (ii) the applicant failed to state when he was transferred from Mbeya to Isanga;

(Hi) the applicant failed to mention dates o fsickness and no affidavit from Prison authority to prove that he was sick as alleged; and (iv) the applicant failed to point out the alleged error in the judgment o f the Court. Based on those reasons Ms. Masai prayed the Court to dismiss the application because the applicant failed to provide good cause for the delay. I heard the parties. The main issue for my determination of this application, is whether the applicant has advanced good cause to warrant extension of time under rule 10 of the Rules. Notably, the Court's power to enlarge time under that rule is discretionary upon good cause. Though there is no specific meaning of good cause but the Court has already given its guidance in respect of that phrase. For instance, in Airtel Tanzania Limited v. Misterlight Electrical Installation Co. Limited and Another, (Civil Application No. 37 of 2020) [2021] TZCA 517, where the Court observed that: "It may not possible to lay down an invariable or constant definition o f the phrase "good cause" but the Court consistently considers such factors like, the length o f delay involved, the reasons for the delay; the degree o f prejudice, if any, that each party stands to suffer depending on how the Court

exercises its discretion; the conduct o f the parties, and the need to baiance the interest o f a party who has a decision in his or her favour against the interest o f a party who has a constitutionally underpinned right o f appeal" In light of the above position, the question calling for determination is whether the applicant has demonstrated good cause. It is not disputed that the delay is not accounted for. However, the applicant confirmed that the decision contained an apparent error, also he claimed to be condemned unheard, and furthermore, he advanced sickness as the reason for failing to file review within the prescribed time. Without much ado, the reason that the decision sought to be reviewed is tainted with error is unsubstantiated. Moreso, the complaint that the applicant was denied the right to be heard lacks basis on the account that failure to impose an appropriate sentence is equated to the denial of the right to be heard. However, the above, the applicant in his motion and affidavit, has advanced sickness and delay in receiving the copy of the judgment as the main cause for his delay. It should be noted that the applicant is an inmate; thus, he should not bear the blame for receiving the copy of the judgment late, hence failing to file his application within the prescribed time. Even

though there is no hospital certificate to back up his argument. The affidavit is wanting on the specific period during which the applicant was seriously sick. Moreso, there is no evidence showing when the applicant was provided with a copy of the said judgment and how long he stayed in bed for illness, apart from the general statement that he was seriously sick. See the Court's decision in Juto Ally v. Lukas Komba & Another, [2020] TZCA where it made the following observations; "I thus reject her argument on the first ground that she failed to serve them because she was sick and lacked the financial means to engage an advocate to initiate the appeal processes during the respective period. Indeed, she has also not explained how her illness contributed to the delay as the medical evidence she attached to her affidavit concerns the period specifically for the dates when she attended to hospital on &h October, 2016 and l9 hJune, 2016. Besides, there is no indication that on those particular dated she was admitted and for how long. The only indication is that she attended Mwananyamaia Hospital as an outpatient, where she was attended and allowed to go to her residence on both occasions."

In light of the above, the ground of sickness presented by the applicant is too general to act upon. Likewise, the applicant has failed to demonstrate good cause; therefore, this application is dismissed. DATED at DODOMA this 10th day of September, 2025 Ruling delivered this 12th day of September, 2025 in the presence of applicant in person via Virtual link from Isanga Prison and Ms. Julieth Katabaro, learned State Attorney for the respondent via Virtual link from High Court Mbeya and Mr. Magesa Mgeta, Court Clerk; is hereby certified as a true copy of the original. 0. 0. MAKUNGU JUSTICE OF APPEAL gjPTl m\ R. W. CHAUNGU | » / ^EPUTY REGISTRAR —S V / COURT OF APPEAL~ 6