Sebastian Michael & Another vs Republic (Criminal Application No. 74/06 of 2024) [2025] TZCA 952 (4 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPLICATION NO. 74/06 OF 2024 SEBASTIAN MICHAEL................................................................ jsr APPLICANT MELELE DANIEL......................................................................... 2n d APPLICANT VERSUS THE REPUBLIC................................................................. . .......... RESPONDENT (Application for Extension of time to file an Application for Review on the decision of the Court, at Mbeya) O-ila, Korosso And Mwandambo. JJA.^ dated the 25th day of February, 2021 in Criminal Appeal No. 145 of 201 ft RULING 25th August & 4th September, 2025 RUMANYIKA. 3.A.: The applicants herein were charged and convicted by the District Court of Momba, for the offences of conspiracy to commit an offence (1st count) and gang rape (1st count) both contrary to sections 384 and 131(1) and (2) of the Penal Code Cap. 16 respectively. Their appeal to the High Court of Tanzania at Dodoma partly succeeded. The conviction and sentence on the 2n d count were quashed and set aside. Then they approached this Court on second appeal, seeking to overturn the conviction and sentence on the offence of gang rape. They lost the battle on 25th February, 2021. Still

protesting for their innocence, the applicants are seeking an extension of time within which to file application for review of the Court's decision. It has been taken out under rules 10, 48 (1) and 66 (1) (a) of the Tanzania Court of Appeal Rules, 2019 ("the Rules'') supported by joint affidavit sworn by the applicants. Essentially, the applicants averred that the Court's decision was based on a manifest error on the face of record occasioning miscarriage of justice as shown in ground one of notice of motion. The 2n d and 3rd grounds seemingly concern severity of the sentence meted on them and reliability of the evidence of PW4. Therefore, the Court is called upon to extend time for it to review its own decision. To them, upon expunging exhibits PI, P2, P4 and P5 which are the respective applicants' extra judicial and cautioned statements, the evidence of the victim (PW4) became shaky and uncorroborated and hence too insufficient to found conviction. And that, the Court ought to have warned itself before relying on it and uphold the applicants' conviction and the sentence imposed. When the application was called on for hearing, the 1st applicant was virtually linked through video conference from Ruanda Prison, Mbeya. Similarly, the 2n d applicant was heard from Isanga Prison, Mbeya, whereas the respondent Republic was represented by Mr. Salmin Zuberi, learned State Attorney. 2

H ie 1st applicant adopted the contents of the affidavit jointly sworn by them. However, he successfully sought the Court's indulgence to accept some new facts, regarding reasons for the delay which they forgot to state in the founding affidavit. He contended that, sometimes after the delivery of the Court's decision, for some reasons their material documents got misplaced from the respective prison cells. And that, they were recovered late in the day on 22/05/2024 and filed the instant application one day later on 23/05/2024. It was also asserted that, thereafter, the applicants were transferred to another prison and, on that account failed to institute the intended application for review within the prescribed time. With regard to the issue of illegality of the decision, subject of the intended review, it was contended that, in holding that the victim (PW4) was credible and reliable, the Court acted illegally. Explaining, the 1st applicant stated that, after exhibits PI, P2, P4 and P5 were expunged from the record, then the evidence of PW4 became too wanting to found conviction. Being prompted by the Court on proof of the documents allegedly to have been misplaced previously and their subsequent transfer to another prison causing the delay, the 1st applicant asserted that, he had no affidavit sworn by any Prison Officer to support his allegations. 3

The 2n d applicant took the same course as the 1st applicant. Too, he adopted the contents of notice of motion and those of the supporting affidavit. He endorsed his fellow's submission and argument for being the reality on the ground. He urged me to grant the application for being merited without more. Replying, Mr. Saimin Zuberi, learned State Attorney informed me that the respondent did not file any affidavit in reply. However, he stoutly resisted the application. To support his position and for the reason that no affidavit in reply was filed, he confined his submission on points of law only as required as follows; One, the affidavit supporting the application did not disclose any reason for the delay and two, the founding affidavit is defective rendering the application to be incompetent and hence liable to be dismissed. Expounding on this point, Mr. Zuberi argued that, at least the affidavit defeats common sense and logic and hence not reflecting the reality on the ground. He asserted that, it was practically impossible for the application to be prepared on 18/05/2024 as alleged if at all the missing documents were recovered on 22/05/2024 and the application lodged the next day on 23/05/2024. Prompted by the Court on the alleged point of illegality, Mr. Zuberi asserted that, this complaint was not made out clearly let alone sufficiently for him to ably understand and argue it. He added that, the Court was done

long ago with the issue of the expunged four exhibits and the strength of the evidence of PW4 founding conviction. Similarly, on the alleged illegality of the life imprisonment meted on the applicants, Mr. Zuberi argued that, it was such a minimum sentence prescribed by the law, which invariably demonstrated no illegality of the respective decision warranting the grant of extension of time. Upon considering notice of motion, the founding affidavit, the respective contending submissions and the entire record of application, the question for consideration is whether, the applicants have established two essentials; one, reason for the delay as good cause for the grant of extension of time under Rule 10 of the Rules and two, ground(s) of the intended review in terms of Rule 66 of the Rules. The applicants may have intimated the intention to invoke Rule 66(1) of the Rules challenging the impugned decision by way of review. However, to start with we agree with Mr. Zuberi that, at least the founding affidavit did not even state the reason for the delay as envisaged under Rule 10 of the Rules. Let alone justification for the delay. It is a rule of thumb, as highlighted earlier on that, for applications of this nature to be successful, the applicant has to account for each day of the delay. He also has to show ground(s) under Rule 66(1) of the Rules 5

upon which the intended review would be predicated. See-our decisions in Mwita Mhere v. R, Criminal Application No. 7 of 2011 (unreported) and Vivian Edgin v. R, (Criminal Application No. 38/05 of 2020) [2023] TZCA 17547 (23 August 2023;TanzLII). As regards the filing of review, it is worth noting that, pursuant to rule 66 (3) of the Rules, the limitation period is sixty days. At least it should have been filed on 25/04/2021 latest, as the decision intended to be reviewed in Criminal Appeal No. 145 of 2018 was delivered on 25/02/2021. However, this application was filed on 23/05/2024, about three years late, after the Court delivered its decision. Needless to say, the applicants did not account for the period of ail those three years of the delay. They should have explained it on the basis of each day of the delay which they did not. As such, the applicants' total failure to account for the said delay is inconsistent with the Court's repeated proposition such as one in Amani Rabi Kalinga v. R, Criminal Application No. 10/06 of 2023 [2023] TZCA 18006; TanzLII). In that application, we reiterated our previous stance that a deiay, even of a single day has to be accounted for. This is to say that, the applicants' failure to account for such an inordinate delay exhibits inaction. Therefore, the filling of the instant application was an afterthought. Also, the applicants did not demonstrate the alleged illegality of the Court's decision as sufficient cause for the grant of extension of time to file review. See- Lyamuya 6

Construction Company Ltd v. Board of the Registered Trustee of Young Women's Christian Association of Tanzania (Civil Application No. 2 of 2010) [2011] 77CA 513 (3 October 2011; TanzLII). As such, the end result of such an inordinate delay to do an act in terms of rule 10 of the Rules cannot be stressed than what the Court has done always. For instance, in Vivian Edgin v. R (Criminal Application No. 38/05 of 2020) [2023] 7ZCA 17547 (23 August 2023; TanzLII) we dismissed the application. This application has to suffer similar consequences as we shall see shortly herein. Regarding the alleged illegality of the decision as good cause for the grant of extension of time, seemingly, the 1st ground is a replica of the 3rd ground of this application. In effect, the applicants fault the trial court for improper evaluating of the evidence and, eventually the Court affirmed it. As such, the complaints only concern uncorroborated evidence of PW4 founding conviction. It is also intended that the Court review its own decision on the life sentence as alluded to before. As a matter of fact, I failed to apprehend the two complaints above as constituting sufficient grounds for the grant of extension of time in terms of rule 10 of the Rules. It is so because the issues of efficacy of the evidence of PW4 founding conviction after the said four exhibits were expunged was 7

misconceived. They only revolve around evaluation of the evidence. However, if, for instance, it is that the sentence meted on the applicants is manifestly excessive or illegal, still that one would sound more of a disguised ground(s) for an intended application for review than being grounds for the grant of extension of time. The purported grounds of application are out of place to say the least. Having observed as above, I am settled in my mind that the application is wanting and misconceived. In consequence, it is hereby dismissed. DATED at DODOMA this 2n d day of September, 2025. S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 4th day of September, 2025 in the presence of 1st & 2n d applicants in person and Mr. Augustino Magesa, learned State Attorney for the respondent/Republic and Mr. Elias Nkwabi, Court Clerk; both through Virtual Court is hereby certified as a true copy of the original. V i s ' jS, ' DEPUTY REGISTRAR ‘ 1'. j k l COURT OF APPEAL \ A. S. CH^GULU 1 1 1 . 8