Elisha Petro vs Director of Public Prosecution (MISCELLANEOUS CRIMINAL APPLICATION NO. 000010434 OF 2026) [2026] TZHC 2955 (2 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA MISCELLANEOUS CRIMINAL APPLICATION NO. 000010434 OF 2026 ELISHA PETRO COMPLAINANT / APPELLANT / APPLICANT VERSUS DIRECTOR OF PUBLIC PROSECUTION RESPONDENT/ DEFENDANT RULING MAHIMBALI, J The Applicant, Elisha Petro, has moved this Court by way of Chamber Summons under Section 361 (2) and 392A (1),(2),(3) of the CPA Cap [20 R. E 2022] seeking leave to file a Notice of Appeal and a substantive appeal out of time against the judgment of the District Court of Arumeru in Criminal Case No. 2169 of 2025. The application is supported by an affidavit sworn by the Applicant. When the application was called for hearing, the Applicant appeared in person. The Respondent was represented by Ms. Eunice Makala, State Attorney. The Applicant's complaint is that he was convicted by the District Court of Arumeru for the offences of unnatural offence and sentenced to thirty (30) years' imprisonment. Being dissatisfied with the conviction and sentence, he intended to challenge the decision before the High Court. However, he failed to lodge the requisite appellate documents within the prescribed period. Page. 1

According to the Applicant, shortly after conviction and sentence he was transferred from Arusha Prison to Ludewa Prison in Njombe Region. He contends that the transfer significantly limited his ability to access legal assistance and pursue the appellate process. He further avers that, being an inmate, he had little knowledge of legal procedures and that upon obtaining appropriate advice from prison authorities, he was informed that he ought to seek leave of the Court to institute the appeal out of time. He therefore prays for extension of time in the interests of justice. The Respondent, through learned State Attorney Ms. Eunice Makala, informed the Court that after perusing the application and supporting affidavit, the Respondent had no objection to the application. Counsel submitted that the delay had been reasonably explained and left the matter to the discretion of the Court. I have carefully considered the application, the affidavit in support thereof, and the submissions made by both parties. The law is settled that the power to extend time for filing an appeal is discretionary. Such discretion must, however, be exercised judicially and upon sufficient cause being shown. The applicant bears the burden of satisfying the Court that there existed circumstances which prevented compliance with the prescribed time limits. In considering applications of this nature, the Court ordinarily takes into account, among other factors, the length of the delay, the explanation offered for the delay, whether the applicant acted promptly once the impediment ceased to exist, and whether the intended appeal appears arguable, without necessarily determining its merits at this stage. In the present matter, the Applicant has explained that following his conviction he was transferred from Arusha Prison to Ludewa Prison, a considerable distance away from the trial court and the registry where appellate processes were to be initiated. The Court takes

judicial notice of the practical difficulties frequently encountered by incarcerated persons in pursuing legal remedies, including limited access to legal assistance, court documents and procedural guidance. The explanation tendered by the Applicant has not been challenged by the Respondent. On the contrary, the Respondent has expressly stated that it does not oppose the application. Although lack of opposition does not automatically entitle an applicant to the orders sought, it remains a relevant consideration where the explanation advanced appears plausible and reasonable. I am further mindful that the right of appeal is an important component of the administration of criminal justice. Courts should, where circumstances permit, lean in favour of determining disputes on their merits rather than shutting out litigants on procedural grounds, provided no undue prejudice will be occasioned to the opposite party. Having considered all the circumstances of this case, I am satisfied that the Applicant has furnished sufficient cause to justify the exercise of this Court's discretion in his favour. The interests of justice would be better served by allowing the intended appeal to be heard on its merits. Accordingly, the application succeeds. Consequently, it is hereby ordered that:

1. Leave is granted to the Applicant to lodge and serve a Notice of Appeal out of time.
2. Leave is further granted to the Applicant to file and serve a substantive appeal out of time against the judgment of the District Court of Arumeru in Criminal Case No. 2169 of 2025.
3. The Notice of Appeal and the Memorandum of Appeal shall be filed within thirty (30) days from the date of this ruling.

In default of compliance within the stipulated period, the leave herein granted shall lapse automatically unless otherwise extended by a lawful order of the Court. Dated at ARUSHA this 2nd of June 2026 . F. H MAHIMBALI JUDGE OF THE HIGH COURT