Kyalamali Mathayo vs Republic (Criminal Application No. 15 of 2013) [2014] TZCA 2315 (25 July 2014)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CRIMINAL APPLICATION NO. 15 OF 2013 KYALAMALI MATHAYO-.--a-.--.~ ..... -.-. ••••••••••• :-;:-;:::-: ••••••••••••••••••••••••••••••••• APPLICANT ----------·- VERSUS THE REPUBLIC ••••••• ~.............................................................. RESPONDENT (Application for extension of time for filling review from the Decision of the Court of Appeal of Tanzania, at Mwanza.) (Mroso, Lubuva, Rutakangwa, lll.A.) dated the 24 th day of April, 2007 in Criminal App. No. 160 of 2005 ................... RULING 25 th July & 5 th August, 2014 MASSATI, J.A.: This is an application for extension of time in which to file an application for review of the judgment of this Court in Criminal Appeal No. 160 of 2005, dated 24 th April, 2007 which dismissed the applicant's appeal. The appeal originated from Criminal Sessions No. 69 of 2003 in which the High Court, sitting at Biharamulo, had convicted the applicant of murder and sentenced him to death. The Court is moved by a Notice of Motion 1

, .. and the applicant's affidavit prefereed under Rules 10 and 66 (3) of the Court of Appeal Rules, 2009 (the Rules). In the grounds of motion, and paragraphs 5, 6 and 7 of the affidavit, the delay is attributed to the prison authorities who, the applicant claims, did not transimit his application for review, which he had prepared and submitted within three weeks after the delivery of the decision sought to be impugned. He also averred in paragraph 5 of the affidavit that the decision was based on a manifest errror on the face of the record. At the hearing, the applicant who appeared in person, adopted his affidavit but said that he could not recollect the error he was reffering to in paragraph 5 of the affidavit. He went on to submit however, that he vaguely remembered that his counsel had advised him to plead guity to the lesser offence of manslaughter but he was supposed to find that he ended up being convicted of murder. So, he pleaded that he be given the extension of time sought, so that, he could present his grievances. 2

However, Mr. Paulo Makanja, the learned State Attorney, who represented the respondent/Republic did not agree. He submitted that in ---·-·------ the absence of an affidavit from a prison officer to substantiate the applicant's claim that he had lodged his application with the prison officer, Butimba, three weeks after the impugned judgment, the delay of 6 years from the date of that judgment (24.4.2007) to the date this application was filed (2.2.2013) was not satisfactionly accounted for. Furthermore, the applicant did not make any efforts to even hint the alleged manifest error on the face of the decision. So, he went on to argue, there was no good cause to extend time. He refered to me the decision of the Court in FESTO JOHN KIMATI V. R, Criminal Application No. 11 of 2009 (unreported); and asked me to dismiss the present application as well. Althought this Court has powers to extend time in which to lodge an application for review, under Rules 10 and 66 (3) of the Rules, the exercise of that direction is circumscribed upon what may now be safely said to be established principles. The major principle is that under Rule 10, the application must establish a good cause. Although the term "goood cause" is not defined in the Rules, a long chain of case law, which need not be 3

cited has established that a good cause is made up when the applicant has shown that the delay is not inordinate and has accounted for all the time of

-----r1deiay:-TnTsnas··5een takento mean an- explaination of the reasons for every single day of delay and the duration of those reasons. The second principle is that the applicant must show that the did not contribute to the delay by his actions, inactions or conduct. The third principle is that the applicant must show that he has an arguable case, such as illegality of the impugned decision; etc. From that angle, it been held that in cases touching on Rule 66 of the Rules, the applicant must go further and show that his case is anchored on one of the grounds of review listed under Rule 66 (1) of the Rules. In the present case, the applicant has attempted to explain the delay by attributing it to the prison authorities. Like my brother Msoffe J.A. in FESTO JOHN KIMATI V. R (supra), I find it difficult to act on such unsubstantiated allegations. The allegations are not supported by an affidavit from a prison officer and devoid of specifics. On that score I have to agree with the respondent that the delay is inordinate and has not been satisfactorily accounted for. 4

The applicant has alleged in paragraph 5 of his affidavit that the .~. - decision was based on a manifest error on the face of the record resultig to a miscarriage of justice. If successful, that constitutes a valid ground of review under Rule 66 (1) of the Rules. But, I agree with Mr. Makanja, the learned State Attorney, that it was not enough for the applicant to merely reflect those words in his affidavit, without more. Since, the primary purpose of review is to address irregularities of a decision or proceedings that have caused injustice to a party (see MIRAJI SEIF V. R, Criminal Application No. 2 of 2009 (unreported) cited in FESTO JOHN KIMATI V .. R (supra), an applicant for extension of time to apply for review is expected to give a hint ot such irregularity or irregularities that he intends to rely on in the putative application for review. If he does not show any, he would not have established an arguable case. With respect, this is the case here. The applicant has not hinted at what irregularities he intends to rely on in his intended application for review. 5

For the above reasons, I find that the applicant has not shown good cause to justify extension of time. The application is therefore devoid of merit. It is accordingly dismissed. DATED at DAR ES SALAAM this 25 th day of July, 2014. S. A. MASSATI JUSTICE OF APPEAL D RTOFA 6