20051216 TZHC Dar es Salaam

,I • IN THE HIGH CO - OF TANZANIA

AT DAR ES SALAAM MISC. CRIMINAL APPLICATION NO. 67 OF 2004 l)ALLY SAIDI MUHANI ......................... APPLICANTS 2) SHABAN OMARY KAMBANGWA

VERSUS D. P: P ................................................. RESPONDENT

JUDGMENT ORIYO, J. The applicants were appellants in Criminal Appeal No.188 of 2003 which was struck out on 23/7/2004 for being filed without being preceded by mandatory Notice of Appeal, which contravened Section 361(a) of the Criminal Procedure Act 1985. They have now applied for leave to file the Notice of Appeal and the Appeal itself out of time. The application is supported by the joint affidavit of the applicants. The applicants state that on admission to prison they expressed their intention to appeal to the prison authorities. They further state that as prisoners , they had no control over the prison ♦ . 1 ... officers who are responsible to prepare and file the relevant documents in Court. At the hearing of the application, Ms Punzi learned State Attorney appeared for the Republic and the applicants appeared in person. Ms Punzi raised concern that applicants affidavit blamed prison officers for the delay or failure to file the Notice of Appeal. She was of the view that prison officers be given an opportunity to be heard on whether the applicants expressed their intention to appeal immediately on admission to the Utete prison or not. According to the State Attorney , such opportunity would avoid condemning the prison officers unheard. I agree with the learned State Attorney that no one should be condemned unheard; that is the law . On the other hand, note should be

taken that the application and supporting affidavit were prepared by the prison officers and if the facts in the affidavit are untrue; the prison officers would not have allowed untrue statements against them to be incorporated in the affidavit. Under these circumstances I take it that the facts in the affidavit are true and on that basis the applicants have advanced sufficient reason why there was no notice filed; due to in action on the part of prison officials. 2 However, that is the first limb to the application . The second limb is whether the applicants have adduced sufficient reasons why the enlargement of time should be granted. The term " sufficient reasons" was defined by the Court of Appeal in the case of REPUBLIC VS YONA KAPONDA (1985) TLR 84; where a single Judge , Makame , J.A. stated as fol lows at page 86 :- 11 In deciding whether or not to extend time I have to consider whether or not there is sufficient reasons. As I understand it, Sufficient Reasons here does not refer only, and is not confined, to the delay. Rather, it is sufficient reasons for extending time, : and for this I have to take into account also the decision intended to be appealed against, the surrounding circumstances and the weight and implications of the issue or issues involved'~ ( emphasis mine). The applicants were charged and convicted of the offence of Unnatural Offences contrary to

Section 154 of the Penal Code as amended by Section 16 of the Sexual Offences and Special Provisions Act , 1998, (SOSPA ). It was alleged that they jointly and together sodomized one Twahil Musa Fundi aged 14 years. The trial Court convicted both and sentenced each to 30 years imprisonment. I have taken into account the victims testimony which was not controverted that the applicants sodomized the victim and that the 3 Victim and the applicants lived in the same village and knew each other before. Therefore there was no issue of mistaken identity of applicants. The victim was injured and treated for grievous harm and had his anus stitched for the tears caused by the unlawful act. The sentence of 30 years is the statutory minimum under the law. In the Circumstances and on the strength of the Court of Appeal decision above; I hold that there are no sufficient reasons adduced by applicants why they should be granted extension of time to lodge the Notice of Appeal and the appeal itself. Accordingly I dismiss the application for leave to file Notice of . Appeal out of time for lack of merit.

JUDGE 16/12/2005 4 .