Magesa Vedastus Maguri vs Republic (Misc. Criminal Application No. 11765 of 2026) [2026] TZHC 3039 (10 June 2026)

1 IN THE HIGH COURT OF TANZANIA NJOMBE SUB - REGISTRY AT NJOMBE MISC. CRIMINAL APPLICATION NO. 11765 OF 2026 (Arising from the decision of the District Court of Makete at Makete in Criminal Case No. 8 of 2023) CASE REFERENCE: 202605282000011765 MAGESA VEDASTUS MAGURI ………………………………………… APPLICANT VERSUS THE REPUBLIC …………………………… ……………… …………… RESPONDENT RULING 9 th & 10 th June, 2026 NONGWA, J. By way of a Chamber Summons made under section 382(2) of the Criminal Procedure Act, [Cap 20 R.E 2023], the CPA, this court is moved to grant e nlargement of time to lodge both the notice of intention to appeal and the petition of appeal against both the conviction and sentence of the District Court of Makete sitting at Makete , the trial court, in Criminal Case No. 4512 of 2026. The same is supported by an affidavit sworn by the applicant, Magesa Vedastus Maguri. However, no counter affidavit was filed by the respondent, Republic. What can be gleaned from the applicant’s affidavit is that the applicant appeared before the trial court as an accused person in the said Criminal Case No. 4512 of 2026 where h e was called on to respond to the charge of rape contrary to sections 130(1), (2)(a) and 131( 3 ) of 2 the Penal Code, [Cap 16 R.E 2023]. He was, on the 12 th March, 2026, convicted as charged and sentenced to serve thirty (30) years in prison. Being late in automatically challenging both the conviction and the sentence, the applicant has brought this application in the manner described here in before. When the matter came for hearing, the parties a ddressed me viva voce. The applicant was fending for himself, unrepresented, whereas Ms. Magdalena Whero, learned State Attorney, was appearing for the re s pondent, Republic. Submitting in chief, the applicant was brief and he submitted that after his conviction, he was not supplied with copies of both the judgment and proceedings of the trial court promptly and that he was transferred from one prison to another. On the other hand, Ms. Whero did not contest the application arguing that the time of delay is reasonable . Having considered the applicant’s supporting affidavit together with his submission and taking into account that the application was not contested by the respondent, it is my respectful view that only one issue is dispositive of this application. The same is whether the applicant has 3 furnished any good cause sufficient to warrant extension of time within which he can challenge the trial court ’s conviction and sentence. U nder the provision of section 382(2 ) of the CPA , this court is enjoined with discretionary power to enlarge the period within which the applicant can institute his appeal in this court against the decision of the trial court . However, the same is not automatic in that every application for enlargement of time should, as of right, be granted. In lieu, the applicant must advance good cause warranting the grant of enlargement of time. In the case of Jacob Shija vs Ms. Regent Food & Drink Ltd & Another (Civil Application 440 of 2017) [2019] TZCA 56 (3 April 2019), the Court of Appeal had the following to say in relation to what amounts to “good cause”: - “… What amounts to good cause cannot be laid by any hard and fast rules but are dependent upon the facts obtaining in each particular case . That is, each case will be decided on its own merits, of course taking into consideration the questions, inter alia, whether the application for extension of time has been brought promptly , whether every day of delay has been explained away , the reasons for the delay , the degree of prejudice to the respondent if time is extended as well as whether there was diligence on the part of the applicant . …” (Emphasis is added). 4 Again, in Tanga Cement Public Limited Company vs Commissioner General ( TRA ) (Civil Application No. 08/01 of 2025) [2025] TZCA 947 (9 September 2025; TanzLII), the Court of Appeal defined “good cause” as follows: - “ Good cause, therefore, generally refers to an objectively accepted reason obstructing or impeding one’s efforts from taking certain expected steps timely . It is a draw back towards timely action as prescribed by law. ” (Emphasis is mine ). In the light of the above position of the law, it is clear that the applicant seeking an extension of time like in the instant application must clearly explain as to why he delayed pursuing his automatic right to challenge the impugned decision. Accordingly, his delay must not be excessively long, unreasonable, or far beyond what is normally expected. In an alternative or upon failure to explain such delay, the applicant must , at least, explicitly show that there is a claim of illegality . However, such illegality must be apparent on the very face of record and of paramount significance . See Joel Silomba vs Republic (Criminal Application No. 5 of 2012) [2013] TZCA 2335 (13 June 2013; TanzLII); Mohamed Athuman i vs Republic (Criminal Application No. 13 of 2015) [2015] TZCA 949 (8 October 2015; TanzLII); and Ally Mohamed Mkupa vs Republic (Criminal A pplication No. 93 of 201 9 ) [2019] TZCA 363 ( 6 November 2019; TanzLII) . 5 In the instant application, the applicant’s main reason s as to why he is late in challenging the trial court’s decision are apparent in his affidavit and the submission made in support of the application. They involve ; one , delayed supply of copies of both the judgment and proceedings of the trial cour t; and two , his transfer from one prison to another. In paragraphs 3 , 4, and 5 of his supporting affidavit, the applicant deposed that following his conviction and sentence, he was transferred to Ludewa prison and later on to Njombe prison where he was transferred on the 4th May, 2026, for purposes of processing his appeal. He also deposed that copies of both the judgment and the proceedings of the trial court were not supplied to him timely making it impracticable for him to make proper follow up. In my considered view, considering that the impugned decision of the trial court was rendered on the 12 th March, 2026 , and that the applicant, who was not supplied with a cop y of the trial court’s records timely , was transferred to Njombe prison on the 4 th May, 2026, for appeal purposes, his delay to give a notice of his intention to appeal within ten (10) days, or to lodge his petition of appeal within forty - five (45) days from the said 12 th March, 2026, cannot be said to be inordinate or otherwise unreasonable. By him being transferred to Njombe prison on the said 4 th May, 2026, for appeal purposes, which was eight (8) days after the said 45 days accruing from the 12 th March, 6 2026, it is clear to me that the applicant was diligent in pursuing his right of appeal because he could not be so transferred to Njombe prison if he was not pushing for his right of appeal . That is, in my considered view, notwithstanding that the applicant has not shown as to when the said copies of judgment or proceedings were supplied to him. Had it not been for the fact that the said copies of the trial court’s records were delayed, I think the applicant would have acted promptly in challenging the conviction and sentence. Under the circumstances of this case, therefore, the applicant whose delay does not exceed two months in respect of his right to give notice of intention to appeal and one month in respect of his right to lodge his petition of appeal against the conviction and sentence by the trial court can only be excused and allowed to lodge those documents in the manner to be directed and ordered in this ruling. Again, in terms of the proviso to section 382(1)(b) of the CPA, the time spent by the applicant in obtaining a cop y of the proceedings, the judgment, or order appealed against ought to have been automatically excluded in computing the period of 45 days within which he could file his petition of appeal. For clarity, the proviso reads that: - “ 382(1) Subject to subsection (2), an appeal from any finding, sentence or order referred to in section 380 shall not be entertained unless the applicant – 7 a) N/A b) has lodged his petition of appeal within forty - five days from the date of the finding, sentence or order, save that in computing the period of forty - five days, the time requi red for obtaining a copy of the proceedings, judgment or order appealed against shall be excluded . (2) N/A.” (Emphasis is supplied ). That has, all along, been the position of the law in criminal appeals and it does not require the intended appellant to apply for extension of time if, at the time of lodging his petition of appeal, 45 days have not elapsed from the date a cop y of either the proceedings, the judgment, or the order appealed against w as supplied to him. See the case of Director of Public Prosecution s vs Mawazo Saliboko @ Shagi & Others (Criminal Appeal No. 384 of 2017) [2020] TZCA 199 (6 May 2020), where the Court of Appeal, interpreting the then proviso of section 379(1)(b) of the CPA (now section 401) which is pari mat e ria with the proviso of section 382(1)(b) of the CPA, said the following: - “… we are in agreement with both parties that the learned Judge erred to hold that the appellant ought to have applied for extension of time to file appeal so that the time requisite for obtaining a copy of the proceedings could be excluded by the court. We are saying this because the law has already excluded that time . The proviso to section 379(1)(b) quoted above is self - explanatory, it does not need any interpretation, it is clear and not ambiguous. It 8 says that in computing the 45 days, the time requisite for obtaining a copy of the proceedings, judgment or order appealed from shall be excluded. It follows therefore that an intended appellant is required to lodge his petition of appeal within forty - five days reckoned from the date of the receipt of the requisite copies . …” (Emphasis is added). Flowing from the principle of the law above, it goes without saying that in the instant application the time spent by the applicant awaiting to be supplied with a copy of either the proceedings or the judgment of the trial court would have been automatically excluded in computing the period of 45 days within which to file petition of appeal. However, bearing in mind that the applicant has not shown as to when he was supplied with a copy of either the proceedings or the judgment of the trial court, it cannot be concluded, with certainty, as to what exact number of days ought to have been automatically excluded in computing the said 45 days. Based on my deliberation in the foregoing, I am satisfied that the generality of the circumstances of this case constitute s good cause upon which the sought e nlargement of time can be granted. As a result, I find merits in this application and I accordingly grant it . The applicant is, therefore, directed to file his notice of intention to appeal within fourteen (14) days from the date of this ruling and the petition of appeal shall be filed in accordance with the dictate of the law. 9 V. M. NONGWA JUDGE 10/06/2026 Dated and Delivered at Njombe this 10 th day of June, 2026, in the presence of the applicant via video link from Njombe Prison and Ms. Magdalena Whero, the learned State Attorney, for the respondent , Republic . V. M. NONGWA JUDGE