Jackson Kihili Luhinda & Another vs Republic (Criminal Application No. 1 of 2013) [2013] TZCA 2408 (1 November 2013)

4 , • ., .__.-' .. ye..--;._" 1. 2. IN THE COURT OF APPEAL Of TANZANIA AT DAR ES SALAAM CRIMINAL APPLICATION NO. 1 OF 2013 JACKSON KIHILI LUHINDA} MUSSA ABDALLAH MADEBE ••••••••••••••••••••.•••••• APPLICANTS VERSUS THE REPUBLIC RESPONDENT (Application for Extension of Time within which to file Review from the decision of the Court of Appeal of ..... .,, ·-- .. Tanzania at Dar es Salaam (Msoffe, J.A., Mbarouk, J.A., And Oriyo, J.A.) Dated 3 rd day of June, 2009 _. in Criminal Appeal No. 139 of 2009 RULING OF THE COURT pt & 8 th November, 2013 RUTAKANG\IVA, J.A.: The applicants were aggrieved by the Court's decision in Criminal Appeal No. 139 of 2007 dated 3 rd June, 2009. As they have no. right to any further appeal their only option was to apply for review. They were late to do so, hence this application for extension of time by notice of motion lodged on 9 th April, 2013. (

The applicants' joint notice of motion is based on Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules), which reads:- The Court may, upon good cause shown, extend the time limited by these Rules or by any decision of the High Court or tribunal for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and reference in these Rules to any such time shall be construed as a reference to that time as so extended. [Emphasis is mine]. The application has been opposed by the respondent Republic which was represented before me by Mr. Pius Hilla, learned State Attorney. When the matter was called on for hearing, the applicants appeared before me in person. They decided to adopt the contents of the notice of motion and affidavits. In the notice of motion, the applicants are contending that:-

[T]he delay in submitting our Review within the stipulated 60 days was beyond control our {sic) as we are prisoners who depend on the prison authority for all our as {sic) per section 363 of the CP.A. CAP 20 R.E 2002. I have noted that the material averments in the applicants individual affidavits are identical. It is being averred thus in paragraphs 5,6,7 and 8 of each affidavit:- 5. That I again filed rny appeal at the court of appeal of {T) Dar es salaam and the said appeal registered as criminal appeal no. 139 of 2007. 6. That the said appeal was dismissed for hence {sic) of merit by the court of appeal on .Yd June/ 2009. 7. That I fHed my review in the court of appeal of {T) in Criminal Application No. 10 of 2010 but the said application was prepared under the court of appeal rules that had already

been revised hence being done on a wrong court rule, 8, That I again prepared another application and forwarded it to the court of appeal and was registered as criminal application no, 11 of 2011. It will suffice to observe in passing that Criminal Application No. 11 of 2011 was struck for being supported_ by an incurably defective joint affidavit (see para 9), hence this application. In resisting this application, Mr. Hilla stressed that the applicants have totally failed to show good cause for the delay in lodging this application. He expressed his concern that had the applicants been serious and wanted to be believed, they ought to have attached to the notice of motion copies of the Court's orders rejecting the previous applications. He accordingly urged me not to grant this application which is based on unsubstantiated allegations. Being lay persons, the applicants had nothing

substantial to tell me in reply apart from imploring me to sympathise with their plight. In disposing of this application, I have found it apt to state at the outset that as we have consistently held, it is difficult to describe with unimpeachable certainty what constitutes sufficient or good cause under Rule 10 of the Rules (or Rule 8 of the old Rules): see Veronica Fubile v. The N.I.C. & Two Others, Civil Application No. 16 of 2008, and Josephina A. Kalolo v. Isaack Michael Mallya, Civil Reference No. 1 of 2010 (both unreported). Borrowing a leaf from Shanti v. Hindoche & Ot.hers [1973] E.A. 207 the Court in the former two cases, held that the most persuave reason an applicant for extension of time can show is that the delay had not been caused or contributed by dilatory conduct on his part. Have the applicants shown this persuasive reason? My considered answer to this crucial question is in the negative. I shall demonstrate why I am so asserting. There is no dispute on the fact that the applicants are serving a prison sentence. Accordingly, they have to route their court processes j.

through the officer in charge of the prison. All the same they have failed to show how this fact contributed to their delay in instituting their review application in time. They are not claiming that they prepared their documents in time and either unwittingly or deliberately the officer in charge failed to forward them to the Court in time. I accordingly find their sole ground in the notice of motion for delaying to apply for review in time to carry no weight at all. I shall also assume in their favour that the applicants made two · abortive attempts to apply for review in the past as is shown in paragraphs 7,8 and 9 of their respective affidavits. This alone notwithstanding, I am settled in my mind that even these applications had been lodged out of time. If the Court's decision was given on 3 rd June, 2009 then the first application which was lodged sometime after 1/02/2010 (the date when the Rules came into operation) had been instituted out of time. This should be said of the second application. The affidavits in support of the notice of motion do not show any cause leave alone a good one as to why the applicants failed to lodge their application by 2 nd August, 2009. The unexplained delay of over four years is too inordinate to be wished away or (

to arouse the sympathy of any judicial mind. The applicants have themselves to blame for the delay. All said, I find myself in full agreement with the unchallenged views of Mr. Hilla. The applicants have failed to show good cause for their unreasonable delay. I accordingly dismiss this application. DATED at DAR ES SALAAM this 1 st day of November, 2013. E.M.K. RUTAKANGWA JUSTICE OF APPEAL I Certify that this is a true copy of the original. F.J.lf:!: DEPUTY REGISTRAR COURT OF APPEAL