20130507 TZCA Tabora

·p { ' . ~ ~ •·.· ·•. - • ,:,,.. ' .. ' . , . l! \i ,,i < ~ I! l IN THE COURT OF APPEAL OF TANZANJA AT TABORA (CORAM: KIMARO. J.A., MANDIA, J.A. And KAIJAGE. J.A.) I CRIMINAL APPEAL ~O. 324 OF 2007: i BUNDALA s/o MWIGULU@ ISSA MUKA ZENGO ................APPELLANT. VERsµs I THE REPUBLIC ........................... ~ ......................... ,..... RESPONDENT I . ' of the High Court (Appeal from the Decision . I of Tanzania at Tabora) · I (S.S.S. Kihio. l.} Dated 13 th day ofiAugust, 2007 in Criminal Appeal No. 120 of 2004 ---------.---- I JUDGMENT OF THE COURT i 7th & 8 th May, 2013 1! I, KAIJAGE, J.A.: Ii I' I I The appellant, BUNDALA s/o MWIGULU @ ISSA MUKA ZENGO was . I: charged with, tried and convicted of, ~o counts of unlawful possession of I., firearms cdntrary to sections 4 (1) and 34 (1) and (2) of the Arms and I, Ammunitions Act, No. 2 of 1991 as rebd with paragraph 20 to the first I 1, i . I Schedule thereof and section 56 (1) <imd 59 (2) of the Economic and Organized Crimes Control Act No. 13 of 1984 as amen~~d by Act No. 3 of 1992. 1 Following a full trial, the District Court of Tabora at Tabora convicted the appellant as charged and meted out a sentence of thirty (30) years imprisonment on each count. Sentences were ordered to run concurrently. Aggrieved by both such conviction and sentence, he appealed to the High Court. His appeal to the High Court was struck out for want of a requisite Notice of intention to appeal. Still aggrieved, the appellant has brought the present appeal. Appellant's substantive complaint distilled from his memorandum of appeal is that the High Court wrongly struck out his appeal without taking notice of the fact that his Notice of intention to appeal was timeously filed on 4th July, 2003. The appellant appeared in person, unrepresented, to argue his appeal, while the respondent/Republic was represented by Ms. Maria Mdulugu, learned State Attorney. When the appeal was called on for hearing, the learned State Attorney rose to support the appeal. She informed the Court that the judgment of the trial Court was delivered on 4/7/2003 and the appellant filed the Notice of intention to appeal against it on 9/7/2003. She asserted 2 .i i ' ' I I 11 ! that the Notice of appeal was filed in ti.me pursuant to!section 361 (1) of ; the Criminal Procedure Act, Cap 20 R.E .. 2002 which provides:- 1 ~. 361 (1) subject to suosection (2), no ~ppea/ i I from any finding, sentenceior order referred.to in ! section 359 shall be e tertained unless the appellant- I I . I (a) Has given notice of his:intention to a~peal I ' within ten days fro j; the date of the finding, sentence or order or, in the case of a I: : 1: : sentence of corporal punishment only, lwithin .t ' 'I' 11 i three days of the date! of such sen~ence." (emphasis added) We are in full agreement with the. earned State Attorney. The Notice . I : of intention to appeal filed by the appellant on 9/7/200: is incorporated in I , the record of appeal on page 42. UndE? these circums~ances, we find no 1; material basis upon which the High C9urt could have: validly struck out appellant's appeal for want of his Notici of intention to !appeal. However, i: ; we have taken note of the fact that th.I:! decision to strike out the appeal ' i i i I 3 : was taken by the High Court without perusing the record and after it had allowed itself to be influenced by the staJement from the bar, appearing on I I page 48 of the record, that the appellant had not given Notice of his intention to appeal. I Be that as it may, we are satisfied that this appeal has merit. It is hereby allowed. Consequently, we qualh and set aside the order of the l j High Court which struck out the appellant's appeal. The record be remitted back to the High Court with . directions I . that appellant's appeal be I entertained and be disposed of expeditioLsly. It is so ordered. DATED at TABORA this 7th day 01IMay, 2013. N. P. KIMARO JUSTICE OF APPEAL I W. S. MANDIA ' JUSTICE OF APPEAL S. S. KAIJAGE I JUSTICE OF APPEAL 1 jf the original. I DEP 4