20161127 TZHC Arusha

. 'I . . I .·•.·;.,,'Ji..,~.·. ,"'~ ":/,· ·-1 . . . . .--1/ .. IN THE HIGH COURT OF.THE UNITED REPUBLIC.OF TANZANIA ·

IN THE DISTRICT REGISTRY ·. AT ARUSHA PC. CRIMINAL APPEAL NO. 12 OF 2016 . . ·. (C/F Karatu Distrid.Court Crimina!Appeal No. 16 of 2016 and Original Karatu Primary Court Criminal Case No. 940-of 2015) 1. A.BROSI STANSLAUS 2. JOHN ABROSI . .}, . n............................ '.APPELLANTS

VERSUS QUWANGA G\¥AYDAMI .. u.................... ~ ...............·.RESPONDENT- Date of last order: 23/08/2016 Date of Ruling: 22/11/2016

RULING MASSENGI, J. This is a ruling in respect of a preliminary point of objection raised by · the respondent to the effect that; · This Appeal is hopelessly time barred. rd On 23 day of August, 2016 this court· ordered the hearing of the preliminary objection to be conducted by way of written su.bmission whereby the appellants were represented by Mr. Ngeseyan learned counsel while the respondent . appeared .·in· person and unrepresented. The respondent was ordered to file submission in chief by 6/9/2016, the. .r appellants to file reply submissions by 20/9/2016. and rejoinder if any to be. · · · •.. filed by 27/9/2016. Both parties complied with the scheduled order. Arguing the preliminary objection, the respondent submitted. that the· appeal before this court is hopelessly time barred as the appeal is arising . from Karatu Primary Court in Criminal Case No. 940/2015 at Karatu, after the appellants being convicted and .sentenced to jail by trial court. They ' ' appealed before Karatu District Court in Criminal Appeal No. ·16/2016. · where the. first appellate court dismissed . appeal on 07/03/2016 and · appellants aggrieved by that decision they lodged their · appeal on 13/06/2016. He contended that, the appeal before this court was filed at Karatu District Court on 13th June, 2016 which is 99 days from the date of decision of the Karatu District Court. It is his argument

that, appeals emanating from Primary Court to the High Court are governed by the Magistrates' Courts Act [CAP 11 R.E. 2002]. The prescribed time limit in lodging appeal originating from Primary Court is thirty (30) days from the day of last order/ decision of the case. He· argued that, section 25 (1) (a) of t!J~ Magistrates; Courts Act p_royide_s the limitation time to appeal to the High Court from the matter originating from Primary. Court, that; "In proceedings of Criminal nature, any person convicted of an offence ......... .if aggrieved by decision or order of a District Court in. the exercfs;e af its appellate 01r rev!sfona! jurlsdfctfon nraJfi-· ~dtf1in tfritty days after • j,. • . ·:. :· -· .·.·.- .- . • • •• <, • . ,- ' . . the date of the decision or orde0 appeal there from to the High Court"(emphasis supplied). He also referred this court to the case of GREGORY RAPHAEL VS PASTORY RWEHABULA. [2005] T.L.R 99 at page 102 to support his argument. He stated that, basing on principle of legislation governing appeals in this court from matters originating from Primary Court, there is ·no where the aggrieved party is required to accompany a copy of proceedings, judgment and/ or order sought to appeal; as. such the requirement of waiting to obtain copies of the judgment and/or order is inapplicable "for the matter emanating from Primary Court to be th.e High Court because it

is only petition of appeal is req~ired for appeal like this one as provided for in section 25 (3) of the MCA that: "Every appeal to the High Court shall be by Vifay of petition and shall be filed in the District Court from the decision or order in respect of which the appeal is brought" To support his . argument, he cited the case of SOPHIA MDEE VS ANDREW MDEIE, Civil Appeal No. 5 of 2015 CAT at Arusha (unreported) which held that: "The ·appeal before the High Court was time barred because it is nat a legal requirement to obtain a copy of judg,111ent prior ta appeal fra111. arrv decfgfan of a Ptfrrran/· Caurtrr (emphasls supplied) • He therefore prayed the preliminary objection be sustained and appeal be dismissed for lapse of time. ·· In · reply, the appellants' counsel. conceded to the Preliminary Objection on point of law raised by the respondent. He contended that the relevant law in relation to Criminal matters originating. from the Primary Court is that such appeal ought to strictly be filed inside thirty days after the ·date of the decision or order appealed against and cited section 25 (1) (b) of the Magistrates' Courts Act (s.upra). He contended that there was oversight of this provision of the law in filing this appeal and prayed this court's sympathy to strike out this appeal for the ends of justice so that the appellants may file an application for execution of time

to file the intended appeal. I have considered the suqmissions of both parties. It is undisputed that this appeal is hopelessly filed out of time ancl ·the appellant's counsel concedes· on that. The appellants' counsel only asks for sympathy of this court to strike out the appeal so as to enable the appellants to file an . application . . . for extension .. .. . ·.. . -, ·, of time. to file the- intended .appeal. . .. ;. . It is provided. . ~ under section 3 (1) of the .Law of Limitation Act provides that any proceedings instituted after the period of limitation shall. be dismissed whether or not limitation has been set up as a defence. That position was also stated in the case of Stephen Mapunda vs. Shfrika ·!a \Usafiri Dar es· Sat~am [19:82.] TLR 258 that a suit barred by lin1itation is a suit . : . .· barred by law, That being the position of the law, it is evident that an appeal institut~d after lapse of the limitation period cannot be ·saved even by consent of partl<:;s or of the court. Besides thatr si11ce the respondent r. ·. ( . troubled to file a preliminary objection. and argued the same, until then is when the appellants conceded to the preliminary objection, as such it ... follows without saying that the preliminary objection is sustained and the appeal is accordingly dismissed with costs. -· Order accordingly. SGD: F.H. MASSENGI .

JUDGE 22/11/2016 Ruling delivered today 22/11/2016 by me in the presence of the 2nd Applicantan9 the Respondent. Others are absent though notified. SGD: A.K. RUMISHA

DEPUTY REGISTRAR 27/11/2016 . . . I hereby certify this to.be a true copy of _the original. DEPUTY REGISTRAR . AR.USHA rtr-<\u 1~(h