George s/o Senga Mussa vs Republic (Criminal Application No. 40/02 of 2023) [2024] TZCA 984 (24 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CRIMINAL APPLICATION NO. 40/02 OF 2023 GEORGE S/O SENGA MUSSA...............................................APPLICANT VERSUS THE REPUBLIC ............................................................... RESPONDENT (Application for Extension of time to file Review from the Judgment of the Court of Appeal of Tanzania at Arusha) (Lila. Mwandambo And Fikirini, J3JA1 dated the 14th day of February, 2022 in Criminal Appeal No. 108 of 2018 RULING 21st & 24th October, 2024. MGONYA, J.A.: The applicant herein, GEORGE S/O SENGA MUSSA, is dissatisfied with the decision of this Court in Criminal Appeal No. 108 of 2018 which was dismissed on its entirety for lack of merits on 7th February 2022. As a result, he is now applying for extension of time to file an application for Review in this respect. The applicant's application is premised under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) as amended. The notice of motion is supported with applicant's affidavit. The applicant advanced two grounds via his notice of motion. The same are to the l

effect that: First, that the delay in lodging the review challenging the Judgment of the Court dated 7th October, 2022, was outside his ability as the prisoner; and second, that, the applicant intends to challenge the Judgment of the Court on ground that the decision was based on manifest errors apparent on the face of the record resulting in a miscarriage of justice, thus the applicant was wrongly deprived of an opportunity to be heard. Hence the applicant intends to rely on rule 66(1) (a)(b) of the Rules in his intended application for Review. When the matter was called for hearing, the applicant appeared in person unrepresented whereas the respondent Republic had the services of Ms. Chema Maswi, learned Senior State Attorney. Submitting for his application, the applicant placed his blame for delay to the Prison's Admission Office for failure to file his application for review to the Court within time. He submitted that, as a prisoner, in most of the time, his powers ended at the admission office and not beyond as he had nothing to do after he submitted his documents to the said office. Under those circumstances, the applicant prayed the Court to consider his situation and grant the prayer sought; so that he can file his application for Review.

Responding to the application, Ms. Maswi did not contest the application, stating that she is supporting the same. It is the learned State Attorney's view that, from the applicant's submission, the applicant did his best to forward his documents to the Prison's Admission Office as he had nothing to do thereafter. In support of her stance, Ms. Maswi cited the decision in Said Ally Ismail v. Director of Public Prosecution, Criminal Application No. 20 of 2015 at page 4 and 5 where it was stated that; the applicant has to show that the delay was not part of the applicant's negligence. Emphasizing on this point, the learned Senior State Attorney is of the view that, after the applicant has lodged his application with the Prison's Admission Office, the applicant's/prisoner's duty is over, and the rest is to be done by the said office in order to facilitate the intended application to reach the Court. She said, from the applicant's affidavit and the grounds of the application, the applicant has managed to demonstrate the good cause for the delay on the prayer sought. I have carefully gone through the applicant's notice of motion and the affidavit in support of it. Reading along the lines, I am not at one with the learned Senior State Attorney that the reason stated by applicant falls within the ambit of good reasons to warrant the

extension of time. It was the applicant's submission that he submitted the documents at the Prison's admission office, but the prison official did not forward the same to the Court within time. Hence, the applicant has nothing to do about the delay. I tend to differ with the learned Senior State Attorney in depending solely on the applicant's narration that it is a Prison's personnel who delayed his application for Review. I find the applicant's averments are bare words not backed up with any affidavit from the prison officials to substantiate it. It was stated by this Court in Mela Mango v. Republic, CriminalAppeal No. 5of 2015 which was referred in Chenyenye Maganyale v. Republic, Criminal Application No. 28/11 of 2017 stated that: " ... the applicant has attempted to shift the blames for the delay to the Prison Authority that, they were the ones who misplaced his earlier application by not lodging it in Court. Such an excuse however, could stand to hold water, if it were to be supplemented by an affidavit from the Prison Authority. The absence o f such supplementary affidavit leaves the contention by the applicant bald and unsubstantiated and therefore, o f little assistance if any".

Being guided with the above position, I am of the stance that, in absence of the supplementary affidavit from the prison officials to substantiate the applicant's contention, I find no any good cause stated by the applicant. Consequently, the application has no merit and it is accordingly dismissed. DATED at ARUSHA this 24th day of October, 2024. The Ruling delivered this 24th day of October, 2024 in the presence of the applicant in person and Witness Mhosole, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. L. E. MGONYA JUSTICE OF APPEAL W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL