Ally Rashid @ Mndolwavs Republic (Criminal Application No. 37 of 2012) [2013] TZCA 2352 (30 October 2013)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CRIMINAL APPLICATION NO. 37 OF 2012 ALLY RASHID @ MNDOLWA .............................................. APPLICANT VERSUS THE REPUBLIC ................................................................. RESPONDENT (Application for Extension of time to lodge Review from the Judgment decision of the Court of Appeal of Tanzania at Dar es Salaam) (Msoffe, 3.A., Kileo, ).A., And Kalecieya, iA.) Dated the 10th day of July, 2007 In Criminal Appeal No. 23 of 2006 RULING 291h October, & 1St November 2013 JUMA,JA.: The applicant, Ally Rashid @ Mndolwa, was convicted by the High Court of Tanzania at Tanga for the offence of murder contrary to section 196 of the Penal Code, Cap 16 and sentenced to suffer death by hanging. On his first appeal, this Court was satisfied that his confession, together the evidence showing that he led the police investigators to where incriminating items were hidden, showed that his appeal was devoid of any merit. His appeal was as a result dismissed on 4/7/2007.

On 12/12/2012, having exhausted appellate procedures but still being aggrieved, the applicant lodged a notice of motion to seek an extension of time within which to apply for a Review out of time. The applicant relied on Rule' 10 the Tanzania Court of Appeal Rules, 2009 (the Rules). The motion contains five grounds which basically explain he delayed in filing for review. The applicant also affirmed his own affidavit in support of his motion. At the hearing of the application, learned State Attorney Mr. Katuga Nassoro appeared for the respondent Republic. The applicant fended for himself. In his submissions, the applicant does not deny the fact that he did not lodge his application for review within sixty days of 4/7/2007 when this Court dismissed his appeal. The applicant reiterated that he would like this Court to grant him an extension of time on the basis of the grounds shown in his motion. In his first ground, the applicant submitted that the dismissal his appeal by this Court confused him so much, that it led to neurologic pains he suffered. He also submitted how, the transfer from Maweni Central Prison to Isanga Central Prison for treatment of epilepsy at Milembe Hospital interfered with his plans to 'apply for a review of the judgment of this Court. The applicant also claims that 2

he suffered from "Otitis," which led to his severe loss of hearing, necessitating his transfer to the Muhimbili National Hospital. He cited his lack of legal knowledge on the need to lodge his application within the sixty days. The applicant lastly laments that that the prison authorities did not inform him that he could lodge his application for review within sixty days of dismissal of his appeal by this Court. Mr. Nassoro opposed the application. He observed that the Tanzania Court of Appeal Rules, 1979 were still applicable at the time when the applicant was supposed to have applied for review. Case law at that time required applicants seeking review of this Court's decisions to apply within sixty days of decisions due for review. The applicants failed this requirement. The learned State Attorney does not accept the explanation offered by the applicant that the confusion he allegedly suffered, or the treatment of epilepsy at Milembe Hospital and loss of hearing he suffered could have prevented him from timely lodging his application for review. Furthermore, Mr. Nassoro pointed out, all documents the applicant enclosed to evidence his medical record all show that he begun treatment in 2012, over five years after expiry of sixty days limitation period. 3

Linkage of an application for extension of time with grounds for review set down under Rule 66 (1) is .yet another reason why Mr. Nassoro thinks that the present application should be dismissed. According to the learned State Attorney, failure of the applicant to indicate in his motion which grounds under Rule 66 (1) he will base his application for review if extension is granted makes the application for extension of time devoid of good cause. On this proposition, Mr. Nassoro referred me to two unreported decisions of this Court: Criminal Application No. 13 of 2009, Charles Barnabas vs Republic and Criminal Appeal No. 11 of 2009, Festo John Kirnati vs. Republic. From submissions, there remains before me the question whether the applicant has shown good cause within Rules 10 and 66 (1) warranting and extension of time within which to apply for review of the judgment of this Court. The principles upon which this Court may grant an extension of time to enable the applicants to apply for a Review have been very well navigated in several decisions of this Court, including Charles Barnabas Vs. Republic (supra) and Eliya Anderson vs. Republic, Criminal Application No. 2 of 2013 (unreported) we dearly laid down a principle that requires an (

applicant seeking an extension of time to show as good cause, a link between the delay in lodging an application and any of the grounds for review under Rule 65 (1). In Eliya Anderson vs. Republic we • an application for extension of time to apply for review should not be entertained unless the applicant has not only shown good cause for the delay, but has also established by affidavit evidence, at that stage, either implicitly or explidtly, that the review application would be predicated on one or more of the grounds mentioned in Rule 66(1)..." I will with due respect be guided by the captioned settled position of the law. For purposes of an application for extension of time to apply for review, grounds of motion and supporting affidavit, must show some link to any of the grounds for review mentioned under Rule 66 (1). The applicant should not have restricted his grounds to what might have prevented him from lodging his application for review within the prescribed period of sixty-days. Apart from his failure to indicate any linkage with Rule 66 (1), the applicant cannot be taken to have advanced any good cause where, as his notice of motion shows, there has been a lengthy delay, such as in this case where his application for extension of time 5 t

I certify thàtthisJs a true N. I ' the original. MA: U PWOU was lodged more than five years on. The learned State Attorney is with respect right to submit that prescriptions records which the applicant enclosed are not of much use in so far as explanation of the delay is concerned. They mostly cover treatment and prescription records of 2011 and 2012, well beyond the sixty days limitation period. They do not show how the ailments the applicant suffered prevented him from asking the prison officer to initiate an application on his behalf. In the upshot, the applicant has not advanced any good cause for this Court to grant him an extension of time to apply for a review of this Court's decision. The application is as a result dismissed. DATED at DAR ES SALAAM this 30th day of October, 2013. I.H. JUMA JUSTICE OF APPEAL