Said s/o Ally Majeje @ Rico @ Kadeti & Another vs Republic (Criminal Application No. 02/07 of 2022) [2025] TZCA 941 (2 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DOPQMA CRIMINAL APPLICATION NO. 02/07 OF 2022 SAID s/o ALLY MAJEJE @RICO@KADETI OMARY s/o ALI JUMA@DEDI ............... . 1st APPLICANT 2 nd APPLICANT RESPONDENT (Application for Extension of time to file Review against the judgment of MAIGE. J.A.: The applicants were convicted, on 17th December of 2007, by the High Court of Tanzania at Mtwara (the trial court) with the offence of murder and each of them sentenced to death by hanging. They appealed to the Court but the appeal was dismissed on 30th September, 2011. This application, which is for extension of time to apply for review, was lodged on 2n d day of July, 2022. It is more than ten years from the date of the decision while the time available for pursuing an application for review is 60 days from the date of the decision. the Court of appeal of Tanzania at Mtwara) (Mnuo, JA, Mbarouk. JA. and Bwana. JA^ dated the 29th day September, 2011 in Criminal Appeal No. 342 of 2019 RULLING

In their affidavits in support of the motion which appears to be identical, the applicants assert that they were unable to timely apply for review because, after being placed to Ukonga Prison, they were shifted to Isanga Prison and, when they were taken back to Ukonga afterwards, the 60 days' time limit had already expired. Unfortunately, however, both the affidavits are silent on the dates of the alleged transfers. Equally so, on the date of receipts of copies of the judgment. In his virtual submissions from Ukonga Prison in Dar Es Salaam, the first applicant adopted the notice of motion and facts in the affidavits and contended that they were constrained by the restrictions in the prison and their transfers as aforesaid from timely pursuing the intended application. On his part, the second applicant who also appeared virtually from the same location, had nothing to say aside from supporting the first applicant's submissions. Notably, though both the affidavits are silent on when the applicants were supplied with a copy of the judgment, in their submissions, the applicants asserted to have been supplied with the same in 2014. At that time, they submitted, the 60 days period had already elapsed. Remarking on that respect, Ms. Neema Haule, learned Principal State Attorney who teamed up with Ms. Grace Mwana, learned Senior

State Attorney, virtually submitted that, the application is devoid of any merit as the facts in the affidavits lack explanations on the apparent delay of more than ten years. She submitted further that the affidavits are silent on such pertinent facts as: when were the applicants supplied with copies of the judgment; when were they shifted to Isanga Prison; and when were they taken back to Ukonga Prison. She further submitted that, though the applicants have alleged in their submissions to have been availed with copies of the judgment in 2014, there is no factual explanations as what happened from that particular time to the date of lodging the current application which is a period of more than 7 years. Such omission, she submitted, constitutes a factor against the grant of an extension of time as per the principle in Ausi Mzee Hassan v. R (Criminal Application No. 69 of 2022) [2023] TZCA 247, TANZLII as the inaction for more than 7 years is an ordinate delay. The application, she further submitted, becomes worthless as the applicants did not account for every day of delay. The complaint that there was delay by the prison officers to deliver copies of the judgment to them, she submitted, remains a mere afterthought in the absence of a supplementary affidavit from a prison officer. She placed reliance on the case of Mathayo Noah Saningo v. R (Criminal Application No. 55/02 of 2024) [2024] TZCA 1078, TANZLII. She concluded, therefore that, the applicants have not factually accounted

for the delay as to establish sufficient cause in terms of rule 10 of the Tanzania Court of Appeal Rules, 2009. In rejoinder, the applicants reiterated what are in their submissions in chief. Having considered the rival submissions in line with the notice of motion and affidavits, I am in agreement with Ms. Haule that, the applicants have failed to account for inaction of a period of 7 years from 2014 when they were supplied with copies of the judgment to 28th July, 2022 when they lodged the current application. As a matter of common sense, such period of inaction is an obvious inordinate delay which as per the principle in Ausi Mzee Hassan v. R (supra), is a factor against grant of an extension of time. I also agree with her that, while the applicants were obliged as of law to account for every day of delay, they have been unable so to do. Mere claim that their delay was caused by the alleged transfers without stating the dates thereof, which would constitute factual materials for determining existence or otherwise of the same, cannot justify existence of sufficient cause for an extension of time. Much as restrictions in prisons and the prisoners' transfer from one prison to another cannot, in an application for extension of time by a convict be ignored, in a situation where there is inordinate delay like this, an affidavit of the officer from the relevant authority, is, as per the authority in

Mathayo Noah Saningo v. R (supra), inevitable. It is for the foregoing reasons that, I find myself unable to grant extension of time on account of factual justification of the delay. The applicants have also relied on illegality as a ground for the application on the basis that the Court was guilty of procedural irregularities and that, they were denied a right to be heard as the appeal was heard while there was no record of committal proceedings. In their submissions, however, the applicants being unrepresented laypersons, did not make any comment on the issue. They left it for the Court to decide. For the respondent, it was submitted, there is no any element of illegality demonstrated in the notice of motion and affidavits capable of being addressed by way of review. I have carefully examined the notice of motion and an affidavit and could not come across with any express or implied evidence of illegality capable of being addressed by way of review which is a necessary condition for a grant of an extension of time to apply for review. See for instance, the case of Charles Barnabas v. Republic, Criminal Application No. 2 of 2007 (unreported) which we referred in Allan Duller v. R (Criminal Application No, 38/01 of 2023) [2025] TZCA 895, TANZLII where a single Justice of the Court said:

"By the same parity o f reasoning , I believe it wouid not be a m onstrous justice that an appiication fo r extension o f time to appiy for review shouid not be entertained unless the applicant has not only shown good cause fo r the delay, but has also established by affidavital evidence, a t that stage, either explicitly or im plicitly, that the review application would be predicated on one or more o f the grounds in Rule 66(1), and not on mere personaI dissatisfaction o f the appeal." In my view, the general assertion in the notice of motion that " the appeal was entertained while there was no com m ittal proceedings in the record" vM ch is generally referred in paragraph 8 of the affidavits in cross reference to ground 1(b) of the notice of motion, does not by itself demonstrate any element of illegality for the purpose of review under rule 66(1) of the Rules. Besides, procedural errors apparent on the face of the record alleged in ground 1(a) of the Notice of Motion and referred without more in paragraph 8 of each of the affidavits, does not, assuming it was established, amount to illegality for the purpose of an extension of time. It is not apparent on the face of record, however, as the law requires. 6

In my conclusion, therefore, the application is devoid of any merit and it is hereby dismissed. DATED at DODOMA this 1st September, 2025. I. J. MAIGE JUSTICE OF APPEAL The Ruling delivered this 2n d day of September, 2025 in the presence of the 1st and 2n d applicants in person unrepresented, and Ms. Neema Haule, learned Principal State Attorney for the respondent connected via Virtual Court and Mr. John Banene Court Clerk, is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 7