Mohamed Idd vs Republic (Criminal Application No. 37 of 2024) [2025] TZCA 916 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPLICATION NO. 37 OF 2024 MOHAMED IDD......................... .............. ............. ....... APPLICANT VERSUS THE REPUBLIC .................................. .......................... RESPONDENT (An Application from the Ruling of the High Court of Tanzania at Manyara) f Kahvoza, J.^ dated the 7th day of August, 2023 in Misc. Criminal Application No. 12 of 2023 RULING 25th & 29th August, 2025 MGONYA, J.A.: This is an application for extension of time for lodging an appeal against the decision of the High Court, which refused the applicant's prayer for extension of time to lodge his petition of appeal. The facts of the matter albeit brief goes as thus; the applicant was convicted with the offence of unlawful possession of government trophy and sentenced to serve 30 years imprisonment in default to pay a fine of TZS. 35,000,000/=. Aggrieved, he intended to appeal against the decision but he was out of time. He successfully applied for

extension of time to file notice of appeal and he lodged the same. However, he defaulted to lodge his petition of appeal within time. As a result, he filed Miscellaneous Criminal Application No. 12 of 2023 for extension of time to file petition of appeal. Having reviewed the application, the High Court Judge (Kahyoza, J.), in his ruling delivered on 7th August, 2023 found that, the applicant delayed to appeal for no apparent and sufficient reasons. That having lodged the notice of appeal, the applicant's advocate would have immediately filed the petition of appeal as he had a copy of the judgment. Consequently, the application was dismissed. Still eagerly to pursue his appeal, the applicant filed the instant application seeking extension of time to lodge his appeal against the High Court decision. In his affidavit, the applicant deponed that, the delay was occasioned by the transfer he encountered. That he has been transferred to different prisons, hence he had poor communication with his advocate. That he instructed advocate Mahigi of Arusha, to prepare and submit his petition of appeal to the High Court but he did not do the same. He deponed further that, due to poor communication with 2

his advocate, he was late when it came to his knowledge that the time to file a petition of appeal lapsed. The applicant's Notice of Motion was also supported by an affidavit sworn by Nahman Waziri Koko (officer in charge of Babati District Prison). In his affidavit Mr. Nahman deponed that, soon after the applicant was admitted in Babati District Prison, he was transferred to Mbulu District Prison, Arusha Central Prison and later returned to Babati Prison. That due to the transfers, there was poor communication between the applicant and his advocate. At the hearing of the application, which was conducted by Virtual Court, the applicant appeared in person, unrepresented. Ms. Rose Sebastian Kayumbo, the learned State Attorney appeared for the respondent Republic. Given the floor, the applicant prayed the Court to consider his application. He contended that, he brought his application before the High Court Judge, but he was not given a chance to submit on it. Being a lay person, he had nothing more, rather he prayed the application be granted. 3

In response, Ms. Kayumbo declared that the respondent objects the application. She argued that, the application is contrary to rule 47 of Tanzania Court of Appeal Rules, 2009 as amended (the Rules). It was the State Attorney's view that, the application before the Court has been prematurely filed as the applicant has never filed the application for notice to appeal before the High Court. The learned State Attorney submitted further that, the Court of Appeal and the High Court has concurrent jurisdiction in determining matters involving extension of time. However, by referring to rule 47 of the Rules and the decision made in Mohamed Swed v. Republic (Criminal Application No. 33/02 of 2024) [2024] TZCA 1018 (1 November 2024; TanzLII), she argued that, the High Court is the court of first instance in hearing such application. That, the Court of Appeal will entertain such kind of application when the same was denied by the High Court. Hence, the application for extension of time, should be filed before the Court as a second bite. According to Ms. Kayumbo, the instant application should not be granted. She contended that, the applicant neither filed a notice of appeal against the decision of Hon. Kahyoza nor brought an application for extension of time to appeal against such decision.

Rejoining, the applicant reiterated his prayer for extension of time to appeal. Having considered the notice of motion, supporting affidavits and submissions made by the parties, there are two issues for determination namely; whether the application is prematurely filed hence improperly before the Court; and whether the application has merit. Starting with the first issue above, admittedly, the law under rule 47 of the Rules, provides procedural guidance on where certain applications should initially be filed, with a specific carve-out for criminal matters. For a useful discussion, I find it apposite to reproduce the said Rule as hereunder: "Whenever application is to be made either to the Court or to the High Court, it shaii in the first instance be made in the High Court or tribunai as the case may be , but in any criminal matter the Court may in its discretion, on application or of its own motion give leave to appeal or extend the time for the doing of any actf notwithstanding the fact that no application has been made to the High Court." [Emphasis supplied]. 5

Reading from the above provision, it is clear that, the Rules empowers the Court of Appeal to exercise discretion in criminal proceedings, independently of the general requirement of first instance. Key aspects from the above provision of the law includes; granting leave to appeal where the Court can approve appeals even if no prior application was made to the High Court. Equally, the Court may extend time limitation for actions like filing appeal under rule 68 or 90 of the Rules. The main purpose of the law under rule 47 of the Rules, is ensuring that meritorious cases are not barred by procedural oversights. This is particularly relevant in criminal appeals, where delays might arise from factors like incarceration, lack of legal representation, or administrative hurdles. See for instance- Robert s/o Hi lima v. Republic (Criminal Appeal No. 42 of 2019) [2021] TZCA 646 (4 November 2021; TanzLII). Therefore, premising on the above analysis, this being a criminal matter, I find that, the application is properly before the Court, regardless that there was no application filed at the High Court before. Hence, the first issue is answered in the negative. 6

Turning to the second issue as to whether the application has merit. It is settled that, the Court can only grant extension of time, if the applicant shows sufficient cause. See for instance- Shabani Mohamed Mwanambingu v. Ally Bwana Ally (Civil Appeal No. 177 of 2021) [2024] TZCA 564 (16 July 2024; TanzLII) and Gideon Hosea Kaunda v. TCCIA Investment Company Ltd (Civil Application No. 469/16 of 2023) [2025] TZCA 541 (2 June 2025; TanzLII). In this application, the sufficient reasons relied on by the applicant includes that, he has been transferred to different prisons and in different Regions, and that he had poor communication with his lawyer. The said reasons were substantiated by the prison officer of Babati Prison as demonstrated earlier. Having considered the circumstances of this application, whereby it is not disputed that the applicant is a prisoner, it is also unchallenged facts that, he has been in court corridors filing sorts of applications propelling to lodge an appeal. It is my firm view that, the stated reasons for the delay are sufficient to warrant the exercise of discretion of the Court in his favor. 7

In the upshot, I find merit in this application and I allow it. Further, the applicant is hereby directed to file a notice of appeal pursuant to rule 68 (1) of the Rules, within 30 days of this order. DATED at DODOMA 29ththis day of August, 2025. L. E. MGONYA JUSTICE OF APPEAL Ruling delivered this 29thday of August, 2025 in the presence of Mr. Mohamed Idd, Applicant/in person, Mr. Bizimana, learned State Attorney for the Respondent via virtual Court and Shaban Kanyai, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 8