Wilson Elisa @ Kiungai vs Republic (Criminal Application No. 39/02 of 2023) [2024] TZCA 983 (24 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CRIMINAL APPLICATION NO. 39/02 QF 2023 WILSON ELISA @ KIUNGAI.........................................................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) fLila, Mwandambo And Fikirini. 3JJA1 dated the 7th day of October, 2022 in Criminal Appeal No. 449 of 2018 RULING 21*& 24* October, 2024. MGONYA, J.A.: The applicant herein, WILSON ELISA @ KIUNGAI, the former appellant in Criminal Appeal No. 449 of 2018 before this Court; whose appeal was dismissed on 7th October, 2022, is before this Court praying for extension of time to file Review, as he is once again dissatisfied with the said Judgment of the Court. The applicant's application via notice of motion is brought under rule 10 of the Tanzania Court of Appeal Rules, 2009 as amended (the Rules). The same is supported by an affidavit duly sworn by the applicant. The grounds advanced by the applicant in the notice of motion are to the 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. The applicant's affidavit is contested through the affidavit in reply duly sworn by Ms. Eunice Makalla the learned Senior State Attorney for the respondent Republic on the ground that, the applicant has failed to demonstrate the good cause for the Court to grant him extension of time to file Review. During hearing of this application, the applicant appeared in person unrepresented, while the Republic was represented by Ms. Naomi Mollel assisted by Ms. Eunice Makalla, both learned Senior State Attorneys. Before submitting in support of the application, the applicant prayed to submit his written submission in respect of the grounds in his notice of motion, the prayer which was not contested by Ms. Mollel, hence granted. In response, the learned Senior State Attorney strongly resisted the application for the reason that the applicant has not furnished any good

cause contrary to rule 10 of the Rules. It was the learned counsel's submission that, ignorance of the law is not an excuse neither a good cause to warrant extension of time. To bolster her argument, she referred me to the decision of Said Ally Ismail v. Director of Public Prosecutions, Criminal Application No. 20 of 2015. It was further the learned Senior State Attorney's contention that, the applicant has also failed to show the manifest error on the face of record in the impugned judgment that needs to be reviewed by the Court in case his application is granted. It was her stance that, the applicant's grounds for review seems to be an afterthought. Hence, she prayed the Court to dismiss the applicant's application for being baseless. In his rejoinder, the applicant insisted that the jail environment is not favoring for one to appeal within time and out of hand for a prisoner. He said, once the prisoner has submitted his documents to the Prison's Admission Office, the matter becomes out of the applicant's hand. He thus prayed the Court to consider his application so as he can file an application for Review before the Court. In determining this application, it is clear that, the grant or non-grant of this kind of application revolves around rule 10 of the Rules, that it is only upon good cause shown. Rule 10 of the Rules provides that:

"..the Court may, upon good cause shown, extend the time limited by these Rules or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that time and whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended". I have thoroughly gone through the applicant's affidavit, and I am interested in the contents of paragraph 8 which states that: "that, I verily believe that the situation leading to my review application being out o f time was out o f my ability, since, I am a prisoner without any means to hire a lawyer, I am entirely depending on the prison authority and in my view I had prepared my application within time." It is gathered from the above excerpt that; the applicant delay was occasioned by the Prison Admission office and not on his faulty. Looking at the date when the judgment was delivered which was on 13th October, 2022 and the date when the instant application was filed which was on 23rd August, 2023 it obvious that the application was filed after more than 200 days contrary to rule 66(3) of the rules. In his submission, the applicant stated that he received the copy of the judgment

through the Prison's Admission Office on 20th March 2023, then he prepared an application for review by 24th April 2023 which he believes was within the time limit. However, he was later informed that the Registrar rejected to receive it on ground that he was out of time. It is settled that, apart from showing good cause for the delay the applicant has to account for every day of the delay. See- Azizi Mohamed & Another v. Republic (Criminal Appeal No. 4 of 2015) [2015] TZCA 568(12 October 2015) and Chenyenye Maganyale v. Republic (Criminal Application No. 28/11 of 2017) [2020] TZCA 337(23 April 2020) TANZUI. In the application at hand, as we have alluded to above, the applicant filed this application while he delayed for more than 100 days. Struggling to explain on the reason for the delay he stated that, he was late to get a copy of the judgment and immediately after receiving it on 23r d March, 2023 he prepared the documents for review application on 24th April, 2023. Let me agree with him that, he prepared the application within a month after having a judgment, still the record of the application does not support that he accounted for each of the delayed days till when the instant application was filed. It is gathered from the notice of motion that, the instant application was filed on 23r d August, 2023 but there is no any

explanation in his affidavit accounting for each delayed day between 24th April 2023 to 23rd August,2023. I have considered the applicant's contention that, he prepared the application within time but it is the prison admission officials who delayed to forward the documents to Court. However, in my view the said complaint cannot be accommodated wholesale. The applicant's affidavit accompanied by a copy of the letter from the registrar rejecting the application which was earlier filed, or the affidavit from the Prison officials to substantiate the applicant's averment were not submitted as evidence before the Court. See; Mela Mango v. Republic, Criminal Application No. 5 of 2015 which was referred to in Jumapili Msyete v. Republic (Criminal Application No. 4 of 2017)[2018]314(13 December 2018] and Anyelwisye Mwakapake v. Republic (Criminal Application No. 1 of 2014)[2015]TZCA 193(13 August 2015) TANZLII. In the former it was held that: "As to the case at hand, in the absence o f the affidavit from the Prison Authority to substantiate the averments in the affidavit in support o f the application then ; the application is apparently with no good . " Being guided with the above authorities, as I found that there is no affidavit from the Prison officials to substantiate the averments in the

applicant's affidavit, it is my firm view that, what has been deponed by the applicant as the reasons for the delay are mere excuses without any legal justification which cannot be condoned. In light of the above, I eventually hold that the applicant did not establish any good cause for me to exercise my discretion in his favour. Therefore, the application has no merit and I dismiss it accordingly. DATED at ARUSHA this 24th day of October, 2024. L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 24th day of October, 2024 in the presence of the applicant in person and in the absence of the respondent/Republic, is hereby certified as a true copy of the original.