Swalehe Abdul vs Republic (Criminal Application No. 32/02 of 2024) [2024] TZCA 1016 (1 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CRIMINAL APPLICATION NO. 32/02 OF 2024 SWALEHE ABDUL.........................................................................APPLICANT VERSUS THE REPUBLIC ...................................... ......................RESPONDENT (Application for Extension of time of the Ruling of the High Court of Tanzania at Manyara) (Kahyoza^J-) dated the 23rd day of August, 2023 in Misc. Criminal Application No. 8 of 2023 RULING 25th October & 1st November, 2024 MGONYA, 3.A.: By a notice of motion dated 16th February, 2024, the applicant, Swalehe Abdul is seeking extension of time to lodge an appeal out of time. 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 2, 3 and of the affidavit are as follows: ” 2. That, there happened misplacement of copy of Judgmentandproceedings in admission office

hence failure to lodge my petition of appeal out o f time; 3. That, I was assisted byprison officer who was a layman, he did not know what to do and when it comes to my knowledge that a prison officer, I was depending on was a layman it was too late. 4. That, I have been transferred to different prisons and prisons camps for instance from Babati prison to Arusha Central prison, from Arusha to Babatiprison, from Babatiprison to Magugu Prison Camp hence failure to lodge my appeal on time". The respondent opposed the application through an affidavit in reply duly sworn by Benedict Kivuma Kapela, Senior State Attorney authorized by the Respondent. The background to the application as can be gathered from the record of this application is that: the applicant was charged and convicted of unnatural offence. He was sentenced to thirty years' imprisonment. Being, aggrieved with the said decision, he timely filed a notice of appeal to the High Court but he delayed to file his appeal. The applicant lodged an application for extension of time to appeal to the High Court Arusha sub

registry which was registered as Misc. Criminal Application No. 38 of 2021, which was unfortunately struck out. Dissatisfied with that decision, the applicant unsuccessful lodged an appeal to the same High Court, Manyara sub-registry. The High Court of Manyara struck out the appeal for being out of time. Still dissatisfied, the applicant unsuccessful lodged another application which was Misc. Criminal Application No. 8 of 2023 seeking an extension of time to file an appeal. Having heard the application, the High Court Judge held that; the applicant did not disclose the reasons for delay. It was further, held by the High Court Judge that, the applicant's application was incompetent as the applicant was attempting to apply for extension of time before the same court while he was required to appeal to the Court of appeal. It is the said ruling which led to the application at hand seeking extension of time to file an appeal out of time. During the hearing of the application, the applicant was unrepresented and had to fend for himself. The respondent had the services of Benedict Kapela, Senior State Attorney. Enjoying his right to begin, the applicant being a lay man, implored me to consider the contents of his affidavit in determining the application. On the respondent's side, Mr. Kapela opposed the application through an

affidavit in reply. He submited that, the applicant's reason that the judgment and proceedings were stolen is baseless and has no merit. That the applicant did not disclose when he received the said document and when the same were lost. Responding on the other advanced reason that the delay was occasioned by the prison officer who was assisting the appellant while he did not know the legal procedures, Mr. Kapela contended that, the same is not sufficient as there is no any proof of his allegations. By referring to the decision made in Amani Rabi Kalinga v. Republic (Criminal Appeal No. 474 of 2019) [2022] TZCA 633(18 October 2022), he argued that, there was no tangible reason to command extension of time. Responding on the reason that, the delay was occasioned by the transfer of the applicant from Babati prison to Arusha Central prison, and then from Arusha to Babati prison and Babati to Magugu prison camp, Mr. Kapela submitted that, the same is also baseless as the applicant did not state when he was transferred in order to account all the days of delay. To bolster his stance the case of Amani Rabi Kalinga v. Republic (supra) where the Court stressed on the requirement to account for each day of the delay, was relied.

Basing on what he submitted Mr. Kapela submitted that the applicant failed to account for each day of the delay hence, he urged the application be dismissed. It is on record that, the instant application arose from Misc. application No. 8 of 2023 which was determined against the applicant on 23r d August, 2023. Being aggrieved, the applicant intended to challenge the said decision but he was late to file his appeal. Hence, on 21s t February, 2024 the applicant filed the instant application. It is obvious 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 settled that, for an appellant who is under custody his/her obligation is merely to express an intention to appeal within ten days following conviction by a court, and that 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).

As alluded to above, after his conviction, the appellant lodged at the High Court a notice of appeal within time although he became late to file an appeal. Being late, the appellant did not stay idle but he went on filling several application seeking for the extension of time although the same were struck out. To me being tireless in filing those applications moving the court to extend the time for him to appeal, is enough to find that he had expressed his intention to make sure that he enjoys the legal right to appeal. Therefore, the facts that, the applicant is in custody and it was not disputed that, he was in limbo through the frequent transfer from one prison to another hence, he cannot easily have an access to proper legal advice and service. It is my view that, he advanced good cause to exercise my discretionary power to grant the application. Having said so, to expediate the matter, I act under rule 47 of the Court of Appeal Rules, 2009 as amended and allow the applicant's application for extension of time. I order that the applicant file the notice of appeal within 10 days of the date of this ruling and file his appeal within 60 days counting from the date when he filed a notice of appeal. The Prison Officer of the Prison 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. Ordered accordingly. DATED at ARUSHA this 31s t day of October, 2024 L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 1st 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 a true copy of the original.