Jackson Mafie vs Republic (Criminal Application No. 31/02 of 2024) [2024] TZCA 1019 (1 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CRIMINAL APPLICATION NO. 31/02 OF 2024 JACKSON MAFIE ...................... ...................................... APPLICANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Application for Extension of time of the Ruling of the High Court of Tanzania at Manyara) (Kahyoza. 3.1 dated the 18th day of August, 2023 in Criminal Application Case No. 27 of 2023 RULING 25th October & 1st November, 2024 MGONYA, J.A.: Before me is an application for extension of time to lodge an appeal out of time filed by Jackson Mafie, the applicant. The same is made by a notice of motion duly filed on 21s t February, 2024. The application is supported by the applicant's affidavit setting out the reasons for the delay in filing his appeal within time. The reasons for the delay set out in paragraphs 3, 4, 5 and 6 of the affidavits are as follows:

"3. That, the learned advocate I hired, erred in iaw by filing my petition of appeal in the same court which gave thejudgment of my case. 4. That, I am a layman andI was depending on the learned advocate I hired hence, I was misled by him. 5. That, it was too late when it came to my knowledge that my appeal was wrongly Wed. 6. That, I delayed to get copy of proceedings from the court where the advocate I hired lodged the appeal". The application is opposed by the respondent through an affidavit in reply duly sworn by Benedict Kivuma Kapela, Senior State Attorney authorized to represent the Respondent. The brief facts leading to the instant application as can be garnered from the record of this application goes as follows: The appellant was arraigned before the District Court of Simanjiro where he was charged and convicted of unlawful possession of narcotic drugs. After conviction, he was sentenced to serve thirty years' imprisonment. Aggrieved with the said decision, he unsuccessful filed an appeal to the High Court where his appeal was determined by the Resident Magistrate with extended

Jurisdiction. Still dissatisfied, he intended to appeal against that decision but he failed to do so within time, hence he approached the High Court and lodged an application for extension of time to appeal which was registered as Misc. Criminal Application No. 27 of 2023. Unfortunately, the said application faced a preliminary objection on the point that the application for extension of time was an abuse of the court process as the applicant initially appealed and lost before the Resident Magistrate with extended Jurisdiction. The High Court upheld the said preliminary objection and finally struck out the application for being incompetent. It is the said ruling which led to the application at hand, seeking extension of time to file an appeal to this Court. During the hearing of the application, the applicant appeared himself unrepresented whereas Mr. Kapela, Senior State Attorney acted for the respondent. When invited to submit in support of the application, the applicant prayed the contents of his affidavit to be considered in determining the application. On the respondent's side, Mr. Kapela opposed the application through an affidavit in reply. He went to submit that; there is no tangible cause for the delay for the application to be granted. To fortify his stance,

the case of Amani Rabi Kalinga v. Republic (Criminal Appeal No. 474 of 2019) [2022] TZCA 633(18 October 2022), was referred. Having considered the applicant's affidavit and the submission made by the respondent's counsel, the nagging issue is whether the application has merit. As alluded to above, the instant application arose from Misc. application No. 27 of 2023 in which the applicant's application for extension of time was dismissed. Being aggrieved, the applicant intended to challenge the said decision before this Court, but he found himself out of time. Therefore, on 21s t February, 2024 the instant application was filed. The law under rule 10 of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules), provides that a party who seeks an extension of time must advance good cause for the Court to exercise its discretionary power to grant the application. See-Hamisi Mohamed (as the Administrator of the Estates of the late RISASI NGAWE) v. Mtumwa Moshi (as the Administratix of the Estate of the late MOSHIABDALLAH), Civil Application No. 407/17 of 2019 (unreported). It is also common that, an application for extension of time is subject to the Court's discretion exercisable on the basis of the available material

before it. See-Daud s/o Haga v. Jenitha Abdon Mchafu, Civil Application No. 19 of 2006 (unreported). It is also trite that, for an appellant who is under custody, his or her obligation is merely to express an intention to appeal within ten days following conviction by a court, and what follows thereafter in terms of forwarding of the documents of the appeal is the duty of the Officer in charge of the prison where the intended appellant is held. See-Chamba Ndangamila v. Republic (Criminal Appeal No. 209 of 2014) [2014] TZCA 262(12 December 2014), Sosthenes Nyanzagiro v. Republic, Criminal Appeal No. 12 of 2003 and Nzeyimana Zeno v. Republic, Criminal Appeal No. 54 of 2007 (unreported). In the instant application, the applicant who is under custody, is struggling to appeal against his conviction and sentence from when he was sentenced to date. It is gathered from his affidavit that, being in prison he solely depended on his advocate to act on his behalf. Unfortunately, the said advocate misled him and he came to realize it when the time to appeal has already lapsed. Thus, having considered the circumstances, of this application, I find that there is good cause to warrant me to exercise my discretionary power to grant the application.

In the upshot, I grant the application and allow the applicant's application for extension of time as prayed. To expediate the matter, I order the applicant to file the notice of appeal within 10 days from the date of this ruling and file his appeal within 60 days reckoning from the date he filed a notice of appeal. The Prison Officer where the applicant is currently held, should forward the appeal documents to the High Court of Tanzania at Manyara Registry for further process as provided by the law. It is so ordered. DATED at ARUSHA this 31s t day of October, 2024 L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 1s t day of November, 2024 in the presence of the applicant in person and in the presence of Ms. Mary Lucas, Principal Senior State Attorney for the respondent/Republic, is hereby certified as