Allan Duller vs Republic (Criminal Application No. 38/01 of 2023) [2025] TZCA 895 (27 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CRIMINAL APPLICATION NO. 38/01 OF 2023 ALLAN DULLER ...... ....................................... ......................... APPLICANT VERSUS THE REPUBLIC........................ ...............................................RESPONDENT (Application for extension of time to file an application for Review from the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) f Lila. Kitusi and Kerefu. JJ.A. ^ 1 dated the 12th day of October, 2021 in Criminal Appeal No. 367 of 2019 RULING 25th & 27th August, 2025 ISMAIL 3.A.: The applicant was charged with and convicted of trafficking in narcotic drugs in contravention of the provisions of section 16 (1) (b) (i) of the Drugs and Prevention of Illicit in Drugs Act, Cap. 95. He was sentenced to a 20-year custodial sentence. Besides imprisonment, the applicant was ordered to pay a fine to the tune of TZS. 524,194,200.00. His appeal to this Court fell through when the conviction and sentence were upheld. i

The applicant is discontented with the decision on appeal and he is contemplating a review against it. Noting that the time prescribed for instituting a review has elapsed, he has preferred the instant application, seeking an extension of time to file a review. The application, taken by way of notice of motion, is supported by the applicant's own affidavit in which grounds for the prayer for extension of time are enumerated. Key among the grounds is the regular transfers from a prison to another as a result of which he failed to take steps that would see him challenge the decision of the Court in good time. The respondent chose not to file an affidavit in reply. At the virtual hearing of the matter, the applicant appeared in person, unrepresented, whilst the respondent was represented by Mr. Tumaini Maingu Mafuru, learned State Attorney. In his brief submission, the applicant implored the Court to grant his application, insisting that, as a prisoner, he had done what it takes to ensure that all procedural aspects are followed, arguing that anything else was out of his control. When probed on why he had not included grounds on which the impending review is to be predicated, the applicant submitted that, he thought that, reasons for the review would be adduced subsequent to granting of the extension of time.

Mr. Mafuru was valiantly opposed to the application. He submitted that, whereas the applicant has done what was required of him in accounting for the delay, in relation to review, the law requires that the applicant should not only account for the delay, but he should also go further and show the grounds on which the review is predicated. These grounds should be contained in the affidavital evidence that supports the motion, he argued. Mr. Mafuru decried the applicant's failure to list any such grounds in the application. He argued that, these grounds are enshrined in rule 66 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). To buttress his contention, Mr. Mafuru referred me to a couple of our decisions in which such requirement was considered to be imperative. These are: Mwita Mhere v. Republic, Criminal Application No. 7 of 2011, quoted in Jamal Msitili @ Chai Jaba v. Republic, Criminal Application No. 52/12 of 2017 (both unreported). He was adamant that the application has failed the test and that, the inescapable consequence is that, the application must fall through. He prayed that the application be dismissed. From the parties' brief submissions, the question to be resolved is whether the application has demonstrated what it takes to have it granted. It is a legal certainty that, granting of an extension of time for

doing an act authorized or required by law is a discretion that is vested in the Court by the provisions of the Tanzania Court of Appeal Rules, 2009 (the Rules). The relevant provision here is rule 10 which provides that such discretion is exercisable where the applicant demonstrates good cause. It is further emphasized that, such discretion must be exercised judiciously, looking at the circumstances that obtain in each case. In so doing, the Court must have regard to the principles of justice, equity and common sense - see: Zuberi Mussa v. Shinyanga Town Council [2009] TZCA 16. Looking at the application, there can be no doubt, as Mr. Mafuru rightly alluded to, that, the reasons adduced by the applicant in paragraphs 4, 5, 6 and 7 would constitute good cause and be the basis for granting an extension of time if this were a normal application for extension of time. But this being an application which is intended to serve as a breakthrough for institution of an application for review, the applicant has a duty of going a step further in order to earn the required lease of life. It requires the applicant to present an arguable case or facts by stating the ground (s) on which his impending review is predicated - see: Mwita Mhere v. Republic (supra). These grounds are enshrined in rule 66 (1) of the Rules. The facts constituting the grounds for review are to

be discerned from the affidavital evidence that accompanies the notice of motion, and the logic behind this requirement is premised on the fact that, unlike appeals or revisions which are, by their own nature, remedies which are pursued as of right, a review is a remedy that is pursued on exceptional basis. It is pursued as a deviation from the factual reality that a judgment of a final court is final and it ought to take a reign and that, its fruits must be let to be enjoyed by the victor - see: Blueline Enterprises Ltd. v. East African Development Bank, Civil Application No. 21 of 2012 (unreported). This is what makes the grant of the review order discretionary and a rarity. See also: Laureno Mseya v. Republic, Criminal Application No. 8 of 2013, Charles Barnabas v. Republic, Criminal Application No. 13 of 2007; Miraj Seif v. Republic, Criminal Application No. 2 of 2009; Eliya Anderson v. Republic, Criminal Application No. 2 of 2013 (all unreported); Jamal Msitili @ Chaijaba v. Republic (supra) and Nicholaus Mgonja @ Makaa v. Republic, Criminal Application No. 8/12 of 2023 [2024] TZCA 279. Thus, in Charles Barnabas (supra), we held as follows: "By the same parity of reasoningI believe it would not be a monstrous justice that an application for extension of time to apply for

review should not be entertained unless the applicant has not only shown good cause for the delay, but has also established by affidavital evidence, at that stage , either explicitly or implicitly, that the review application would be predicated on one or more of the grounds mentioned in Rule 66 (1), and not on mere personal dissatisfaction with the outcome of the appeal." The foregoing position was accentuated in our subsequent decision in Jamal Msitili @ Chaijaba (supra) wherein we guided as hereunder. "True, it is settled law that in addition to showing good cause for the delay, an applicant seeking extension of time to apply for review must show one of the grounds under Rule 66 of the Rules upon which the intended review is predicated." As stated earlier on, the applicant's depositions have only dwelt on why he was unable to institute the review timeously. There is not a single mention of the grounds upon which he intends to impugn the judgment of the Court. While conceding that this requirement was not factored in his depositions, he went further and explained that he intended to deal with this issue upon being granted an enlargement of time. With respect to the applicant, this thinking would amount to nothing but a fallacious

indulgence, a surest way of having his application fall through for want of the necessary sufficiency, required for its grant. It is in view thereof, that I am in agreement with Mr. Mafuru that the Court's discretion has not been appropriately triggered to have the application granted. Consequently, I find this application unmeritorious and I dismiss it. It is so ordered. DATED at DODOMA this 27th day of August, 2025. M. K. ISMAIL JUSTICE OF APPEAL The Ruling delivered this 27th day of August, 2025 in the presence of Applicant in person and Mr. Tumaini Maingu Mafuru, learned State Attorney for the Respondent/Republic, via virtual Court is hereby certified as a true copy of the original. 7