Henibo Samweli & Another vs Republic (Criminal Application No. 7 of 2013) [2014] TZCA 2263 (23 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CRIMINAL APPLICATION NO. 7 OF 2013

1. HENIBO SAMWELI
2. BAHATI MWASHANILA .......................................... APPLICANTS VERSUS THE REPUBLIC ... . ... . . .. . .. . . .. .. .. .. ... ... .. ... .... ....... ... . ...... ... RESPONDENT (Application for Extension of time from the decision Court of Appeal of Tanzania at Mbeya) (Rutakangwa, Luanda, And Juma,JJJ.A) dated the 25 th day of June, 2013 in Criminal Application No. 4 of 2010 2 nd & 23 rd May, 2014 MANDIA, J.A.: .......... RULING OF THE COURT The applicants have filed an application for extension of time within which to lodge an application for review. The affidavit accompanying the notice of motion depones, in paragraph six, that they had earlier on filed a similar application, No. 4 of 2010, which was struck out for citing the wrong provision in moving the Court, and also for offending Rule 48(2) of the Court of Appeal Rules, 2009. They are therefore making a second attempt after the first application was struck out for being incompetent. In Criminal Application No. 4 of 2010 this Court observed that the application filed by the applicants was out of time. The applicants have, in the present application, deponed in paragraph 8 that they thought they were in time because they swore the 1 ·t .:;. :t .. .n...-H·r, ...,J! 't·' ~~ ·, . ·"'

affidavit accompanying the Notice of Motion on 26/8/2010 which was in time for the application to be lodged. Consequently, they depose, in paragraph nine of each of their affidavits, that if there is any delay they are not responsible because they are prisoners depending on prison authorities. The applicants are two in number. They have sworn two separate affidavits which are similar in content except for their names. This makes the content of each paragraph in one affidavit to be similar to a corresponding paragraph in the other affidavit. The applicants appeared in court in person, unrepresented. The respondent was represented by Mr. Edwin Kakolaki, learned Principal State Attorney. The applicants had nothing to add to their respective affidavits. On his part Mr. Kakolaki moved the Court to dismiss the application on the ground that the appellants have not explained .the delay for which they are seeking extension of time. He contends that the appellants are blaming unnamed prison authorities for the delay but there is no evidence from any prison official to support their assertion of fact that the delay was caused by some prison officer who they do not name. The learned Principal State attorney also gives a second reason for moving the Court to dismiss the application. He contends that the applicants have not shown any point of law which they need to be reviewed, and they cite the case of CHARLES BARNABAS V. THE REPUBLIC, Criminal application No. 13 of 2009 to support his view. 2

The affidavit in support of the Notice of Motion by each one of the two applicants gives the reason for delay as the fact that the applicants are prisoners under the control of prison authorities so they cannot be responsible for any delay if it occurs. The notice of motion was lodged by the applicants, each one of them as an applicant. In their identical affidavits, each one of the two applicants deposes in paragraphs 7,8 and 9 that as prisoners they are not responsible for any delay caused because they are prisoners. Rule 10 of the Court of Appeal Rules, 2009 gives the power to the Court to extend time upon good cause being shown. The good cause is shown by the one who is applying for extension. The two applicants, in their respective affidavits, have not attempted to show good cause. They seem to front the argument that because they are prisoners then have no obligation to show good cause, and that good cause should be shown by those who are holding them in prison. This is not the purport of Rule 10. I am satisfied that the applicants have not shown good cause as required of them under Rule10. The application is therefore dismissed. DATED at MBEYA the 23 rd day of May, 2014. W. S. MANDIA JUSTICE OF APPEAL I certify that bl~ is a true copy of the original. O. /-- 0 / ! . I i \ \ ~{iiJ~~~'t l<I .. ' ------- . ..-- J,' ----· _.-,::;;;· ...

<Ilk£ F.J. Kabwe DEPUTY REGISTRAR COURT OF APPEAL 3