Goyo Kisiki Itembe vs Republic (Criminal Appeal No. 618 of 2020) [2024] TZCA 992 (28 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: MUGASHA, J.A., MASHAKA, J.A.. And ISSA, 3-A .^ CRIMINAL APPEAL NO. 618 OF 2020 GOYO KISIKIITEMBE ................................................................... APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the Order of the High Court of Tanzania at Musoma) fGaleba, J.^ dated the 3rd day of December, 2019 in Misc. Criminal Application No. 16 of 2019 JUDGMENT OF THE COURT 25th & 28th October, 2024 MUGASHA. J.A.: The appellant for the past six years has been struggling to pursue a first appeal before the High Court against the conviction and sentence meted by the subordinate court namely, the District Court of Serengeti. In the present appeal before us, the appellant is challenging the order of the High Court in which he was denied extension of time to lodge a notice of appeal and the appeal against the decision of the District Court of Serengeti. The background of the appeal is briefly as follows: The appellant was charged with the offence of unlawful possession of Government Trophies contrary to section 86(1) and (2) of the Wildlife Conservation Act [CAP 283

R.E 2002] read together with sections 57 (1) and 60 (2) and paragraph 14 (b) of the First Schedule to the Economic and Organised Crime Control Act [CAP 200 R.E 2002], At the trial, the prosecution closed its case on 4/5/2016 after parading two witnesses. On the said date, in the absence of the appellant, the trial court ordered that judgment would be delivered on 12/5/2016. However, the record is silent if the appellant was addressed on electing the manner to adduce his defence as required under the provisions of section 231 of the revised edition of the Criminal Procedure Act (the CPA). That apart, it is not clear if the appellant was given opportunity to adduce evidence against the assertions against him laid by the prosecution. On 31/5/2016 the appellant was convicted in absentia and sentenced to a jail term of twenty years. Since the appellant was at large, upon resurfacing, on 22/1/2018 before the trial court, a warrant was issued to commit him to serve imprisonment for twenty years. Since the appellant was desirous of challenging the decision of the trial court, he prepared a notice of appeal which signed and dated on 29/1/2018. On the same day it was endorsed by the Officer Incharge of Mugumu Prison and lodged before the High Court, Mwanza Registry. Subsequently, the appellant filed Criminal Appeal No. 61 of 2019 which was on 13/8/2019 struck out for being time barred. Later, on 9/9/2019, vide Miscellaneous

Criminal Application No. 16 of 2019 the appellant filed an application seeking extension of time to lodge notice of appeal and the appeal. The grounds advanced in support of the application included: one, the notice of appeal dated 29/1/2018 was presented to the Officer In charge of the Prison before the prescribed ten days from the date when judgment of the trial court was read to him; and two, the delay to file the appeal was occasioned by the late delivery of the trial proceedings on 17/5/2019. The learned Judge was satisfied that the appellant had failed to demonstrate sufficient cause for the delay following the delivery of trial court judgment on 31 / 5 / 2016 . Thus, he declined to grant the application for extension. It is against the said backdrop, the appellant has preferred this appeal challenging the impugned order of the High Court on the grounds that: One, the learned High Court did not consider that the notice of appeal was filed when the appellant was committed to the prison; and two, the appeal was not filed within prescribed time because of the delay to obtain trial proceedings. At the hearing of the appeal, the appellant appeared in person unrepresented. He adopted the grounds of appeal and opted to initially hear the submission of the respondent in respect of the appeal. On the other hand, the respondent Republic had the services of Mr. Isihaka Ibrahim, Ms.

Agma Haule and Ms. Beatrice Mgumba, all learned State Attorneys. It is Mr. Ibrahim who addressed us and he did not oppose the appeal on ground that as the appellant who was sentenced in absentia and later committed to prison could not pursue the appeal within the prescribed time. Having considered the complaint, submissions and the record before us, we have to determine if the Court is justified to interfere with the discretional powers of the High Court's under the provisions of section 361 (2) of the CPA which stipulates as hereunder: "The High Court may, for good cause, admit an appeal notwithstanding that the period o f limitation prescribed in this section has elapsed." Although extension of time under the above provision is a discretionary mandate on the part of the High Court, such discretion must be exercised judiciously taking into consideration relevant facts of the particular case. This was emphasized by the Court in KASSANA SHABANI & ANOTHER V. REPUBLIC, Criminal Appeal No. 476 of 2007 (unreported) that: "Since there appears to be a recurring or perennial problem, we would like to take this opportunity to make it dear that once an applicant under section 361 o f the Act has satisfactorily accounted for the delay in giving notice o f appeal or filing a petition o f appeal,

extension o f time ought to be granted as a matter o f right" See also: MANENO MUYOMBE AND ANOTHER VS REPUBLIC, Criminal Appeal No. 435 of 2016 (unreported) Furthermore, it is settled law that, this Court cannot interfere with the High Court's exercise of its discretion unless it is satisfied that the decision concerned was made on a wrong principle or that certain factors were not taken into account. In the case of CREDO SIWALE VS REPUBLIC, Criminal Appeal No. 417 of 2013 (unreported) relying on the case of MBOGO AND ANOTHER V. SHAH [1968] 1 EA 93 which stated the general principles upon which an appellate court can interfere with the exercise of discretionary powers of an inferior court or tribunal and said thus: " (i) I f the inferior Court misdirected itself; or (ii) it has acted on matters it should not have not have acted; or (Hi) it has failed to take into consideration matters which it should have taken into consideration, And in so doing, arrived at wrong conclusion. Otherjurisdictions have put it as ’! 'abuse o f discretion" and that an abuse o f discretion occurs when the decision in question was not based on fact, logic, and reason, but was arbitrary, unreasonable or

unconscionable - See-PINKSTAFF VS BLACK & DECK7Z (US) Inc, 211 £: W 361." We fully subscribe to the stated standpoint which is applicable in determining as to whether or not the learned High Court Judge did exercise his discretion judiciously and we shall accordingly be guided in determining the present appeal. In view of the stated principles and what transpired before the High Court with respect, it is our considered view that this is one of the cases warranting Court's interference with the discretion of the learned High Court Judge declining to grant the extension sought. We are fortified in this regard because the learned High Court Judge did not take into consideration that, the appellant who was convicted in absentia became aware of the judgment of the trial court on 22/1/2018 when it was read to him and not on 31/5 2016 when it was delivered. Besides, it was incumbent on the learned High Court Judge to consider that, the appellant who was behind bars in prison was at the mercy of the Officer In Charge of the Prison and had no control over the affairs. In the circumstances, it was beyond reach to expect from him to strictly comply with the prescribed timeline to lodge before the High Court the documents in pursuit of the appeal.

In view of what we have demonstrated, one, in terms of section 361 (1) (a) of the CPA, we find the notice of appeal valid having been filed on 29/1/2018 within the prescribed ten days from the date when the appellant became aware of the judgment of the trial court; and two, since the appellant exhibited good cause for the delay to file the appeal, it was unfair on the part of the learned High Court Judge to decline the grant of extension of time to file the appeal. Consequently, we allow the appeal, quash and set aside the order of the High Court. The appellant is granted leave to file the respective appeal not later than forty five days from the date of this decision. DATED at MUSOMA this 25th day of October, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL 3gment delivered this 28th day of October, 2024 in the presence of Appellant in person un-represented and Mr. Zarubabel Ngowi, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL