Director of Public Prosecution Vs Evance Odiambo Benson (Criminal Application 274 of 2018) 2021 TZHC 2743 (16 April 2021)

IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM
CRIMINAL APPLICATION NO. 274 OF 2018
DIRECTOR OF PUBLIC PROSECUTION…………………………………..APPLLICANT
VERSUS
EVANCE ODIAMBO BENSON ……………………………………………RESPONDENT
(From the decision of the District of Kinondoni at Kinondoni)
(Kiliwa- Esq, RM.)
Dated 15th May, 2015
in
Criminal Appeal No. 310 of 2011
--------------
RULING
26th February & 16th April 2021
AK. Rwizile, J
This application is for extension of time. The applicant who appeared to be aggrieved by
the decision of the trial court advanced an appeal. It was later struck out by this court
because it was filed out of time and there was no application to apply for its extension.
Following that order, the applicant properly filed this application seeking leave to appeal
out of time. In actual fact, it occurred in 2011, that the respondent was arraigned on
several counts of forgery and uttering false documents. Upon hearing the case, he was
acquitted. Even though the applicant was aggrieved, did not file his appeal in time.
1
This time, the applicant has approached this court under section 379(2) of the Criminal
Procedure Code, asking for extension of time to file the same. The respondent could not
easily be traced. This brought an amount of delay which was cause by failure to effect
service. It was ultimately published as the law requires. It was done in the Habari Leo
daily circulating news paper on consecutive dates of 24th, 26th and 28th April 2020. Despite
all these efforts, the respondent did not show up. This application therefore was heard
exparte.
The applicant enjoying representation of Mr. Kisima learned State Attorney, submitted
on the basis of the affidavit supporting this application as sworn by Ellen Masululi State
Attorney, that this application should be granted. It was his view that the cause of delay
is the fact that when the decision was made in 15th May 2018, the complainant was sick
at Singida. The complainant therefore, failed to sort of instruct the applicant to prefer an
appeal or not. By the time, that happened, time to appeal had elapsed. He therefore
asked this court to grant the application.
Having heard the application, I have to start by pointing out at the position of the law
under which this application is sought. The law under which the application is pegged
states as hereunder;
379.-(1) Subject to subsection (2), no appeal under section 378 shall be

entertained unless the Director of Public Prosecutions or a person acting under his
instructions-
(a) has given notice of his intention to appeal to the subordinate court within thirty
days of the acquittal, finding, sentence or order against which he wishes to appeal
and the notice of appeal shall institute the appeal; and
(b) has lodged his petition of appeal within forty-five days from the date of such
acquittal, finding, sentence or order; save that in computing the said period of
forty-five days the time requisite for obtaining a copy of the proceedings, judgment
or order appealed against or of the record of proceedings in the case shall be
excluded.
(2) The High Court may, for good cause, admit an appeal notwithstanding that
the periods of limitation prescribed in this section have elapsed.
2
From the record, it is crystal clear that the applicant filed a notice of intention to appeal
in time. This complied with the requirement of the law in one party that an appeal was
instituted in time. But second, the applicant was to lodge an appeal in 45 days of the
decision which the applicant failed to do. Having failed to follow the requirement of the
law under subsection 1 (b), the court is empowered to extend time upon the applicant
showing good cause. This good cause must be shown by the applicant in simple and clear
terms.
The applicant has alleged the complainant was sick at the time the decision was made.
In criminal procedure obtaining here, cases in the subordinate courts save the Primary
court are prosecuted by the applicant. i.e The Republic through the Director of Public
Prosecutions. I am saying this with the purpose, because under section 2 of the CPA,
the Complainant” in a private prosecution, means the private prosecutor or the person
making the complaint before the court and, in all public prosecutions, means the person
presenting the case on behalf of the Republic before the court.
It is explicitly stated therefore that since there was no private prosecution at all. All
prosecutions were done by the applicant as the complainant. In all fours therefore, it was
the duty of the applicant to consider preferring the appeal because it is the same person
who prosecuted it. The applicant cannot and should not be instructed by any person to
prefer any charge or an appeal. Since doing so would be tantamount to defeating the
purpose for which section 9 of the National Prosecution Services Act was enacted for.
The same gives such powers, which are exercisable in the spirit of need to do justice, the
need to prevent abuse of legal process, take matter at the public interest and have control
of criminal prosecutions. This spirit is carried on as well under section 8 of the same Act.
The applicant therefore, has to show cause, sufficient to warrant grant of the same. The
crucial issue for my determination is whether or not the applicant has shown good cause
for delay. The law on the issue is now well established. It is trite, as held in the case of
Joel Silomba vs The Republic, Criminal Application NO. 5 OF 2012, CA, (Unreported),
that in considering whether or not to grant such extension of time, courts take into
account these factors:
3
(i) the length of the delay;
(ii) the reason for the delay: was the delay caused or contributed by the dilatory
conduct of the applicant?
(iii) whether there is an arguable case, such as, whether there is a point of law or
the illegality or otherwise of the decision sought to be challenged; and/or
(iv) the degree of prejudice to the opposite party if the application is granted.
See, also cases of Shanti v. Hindocha & Others [1973] E.A. 207, Principal
Secretary, Ministry of Defence and National Service v. Devram Valambia [1992]
T.L.R. 185, VIP Engineering and Marketing LTD & Two Others v. Citibank
Tanzania Ltd, Consolidated Civil References No. 6,7, & 8 of 2006, Eliya Anderson v.R,
Criminal Application No. 2 of 2013 and Tanzania Revenue Authority v. Tango
Transport Co. Ltd, Consolidated Civil Application No. 4 of 2009 (all unreported).
I must confess and be pardoned for so doing, that I do not see any of the requirements
stated above complied with by the applicant. I am aware that this application is taken
exparte, but as a matter of principle the applicant ought not to expect an easy ride. Cases
are to be prosecuted and so decided on merit. I therefore dismiss this applicant for want
of merit.
AK. Rwizile
Judge
Recoverable Signature
Signed by: A.K.RWIZILE

Director of Public Prosecution Vs Evance Odiambo Benson (Criminal Application 274 of 2018) 2021 TZHC 2743 (16 April 2021)

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IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

CRIMINAL APPLICATION NO. 274 OF 2018

DIRECTOR OF PUBLIC PROSECUTION…………………………………..APPLLICANT

EVANCE ODIAMBO BENSON ……………………………………………RESPONDENT

(From the decision of the District of Kinondoni at Kinondoni)

(Kiliwa- Esq, RM.)

Dated 15th May, 2015

Criminal Appeal No. 310 of 2011

26th February & 16th April 2021

379.-(1) Subject to subsection (2), no appeal under section 378 shall be

Signed by: A.K.RWIZILE

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