20100215 TZCA Arusha

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IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA (CORAM: NSEKELA, J.A., RUTAKANGWA, J.A., And MANDIA, J.A.) CRIMINAL APPEAL NO. 12 OF 2007 AALH BAI(ARI ............................................................. APPELLANT

VERSUS THE DIRECTOR OF PUBLIC PROSECUTIONS.....................RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Arusha) (Msoffe, 1) dated the 12th day of April, 2002 in Criminal Appeal No. 3 of 1999

RULING OF THE COURT lO th & 18th February, 2010 MANDIA, J.A. On 3rd October, 2005, this Court struck out an appeal filed by the present appellant in Criminal Appeal Number 108 of 2005, the reason being that the appeal was lodged out of time without leave of the Court. Thereafter the appellant filed Criminal Application Number 3 of 2006 in the High Court of Tanzania at Arusha, in which he 2 applied for extension of time to lodge a notice of appeal to this Court. In a ruling delivered on 24/7/2006, the High Court allowed the application for extension of time and ordered that the application to be filed within fourteen days of delivery of the ruling. The appellant, who was held as a prisoner at Arusha Central Prison, signed his notice of appeal on I st December 2006 by impressing his thumbprint on the notice. The endorsement by the Officer in Charge, Arusha Central Prison, shows that the appellant expressed his intention to appeal on 1 st of December, 2006 and the notice was forwarded to the Registrar of the High Court on 8th of December 2006. The Registrar acknowledged receipt of the notice on 11 t h December, 2006. When the appeal came up for hearing today Mr. Jason Kaishozi, learned Senior State Attorney representing the Respondent/Director of Public Prosecutions, raised a notice of preliminary objection in which he argued that the appeal is incompetent because the Notice of

Intention to Appeal was filed out of time. The learned Senior State Attorney, therefore, prayed that this Court strike out the appeal. 4 3 The appellant appeared in person at the hearing of this appeal and was unrepresented. In reply to the prayer made by the learned Senior State Attorney representing the respondent, he argued that he received a copy of the ruling made by the High Court extending time for him to file a notice of appeal on 30th November, 2006, and on December he fifed his notice through the officer in charge of the prison in which he was held. He argued that he could not file the notice before receiving a copy of the ruling granting him extension of time. He also conceded that when the ruling granting him extension was pronounced in the High Court on 24/7/2006 he was present in court. We take note that the ruling pronounced in open court in the presence of the appellant was unequivocal when it stated that the appellant had fourteen days in which to file a notice of appeal. The latest date the appellant had to file his notice was 7/8/2006 but the appellant took up to 1/12/2006, more than three months later, to file the same. The appellant tried to explain away the delay by saying 1 ru that he received a copy of the ruling granting him extension on 30/11/2006 and on 1/12/2006 filed his notice. We have given due thought to the objection by the respondent, and the

explanation by the appellant. We are of the view that the order of the court pronounced in the presence of the appellant was clear and unambiguous. There was no condition precedent which allowed the appellant to wait for and get a copy of the ruling before filing his notice. The court order gave the appellant, in simple and straight forward language, fourteen days within which to file his notice of appeal. The order of the court had no room for extended application in the manner the appellant is suggesting. We find merit in the preliminary objection and sustain it. We find the appeal incompetent because the notice of appeal was lodged out of time. We strike out the purported appeal under Rule 4(2)(a) of the Court of Appeal Rules, 2009. It is so ordered. 5 DATED at ARUSHA this 15th day of February, 2010. H.R NSEKELA

JUSTICE OF APPEAL E.M.K. RUTAKANGWA

JUSTICE OF APPEAL W.S. MANDIA

JUSTICE OF APPEAL I certify that this is a true copy of the original