20160727 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA PC-CRIMINAL APPEAL NO. 6 OF 2016 (Originating from Arusha District Court Misc Criminal Application No. 37 of 2015 Arusha Urban Primary Court Criminal Case No. 239 of 2014) 1. WILLIAM MEMULUTI. ................................... 1ST APPELLANT 2. LOITU LEYANI ........................................ ,...... 2ND APPELLANT 3. MMASAI MEMULUTI ............. ~ ....................... 3RD APPELLANT 4. SALUMU MEMULUTI ............. ~ ........................ 4 1 H APPELLANT 5. LOITALE MEMULUTI ............•........................ 51 H APPELLANT VERSUS LONGISHU MEMURUTI. ....................................... RESPONDENT Date of last Order: 23/06/2016 Date of Judgment: 27/07/2016 JUDGMENT MASSENGI,J Appellant William Memuluti and others through the service of Learned Advocate Dr. Mchami are appealing the decision of the Arusha District Court in Misc Criminal Application No. 37 of 2015. Respondent Longishu Memuluti is not represented he appeared in person. Appellant's initially had filed Misc Criminal Application No. 37 of 2015 before the Arusha District Court seeking for extension of time to file ' 1 Criminal Appeal against the Judgment in Arusha Primary Court Criminal Case No. 239 of 2014. The application was brought under the Provisions of section of Section 20 (1) (a) of the Magistrate Court's Act. At the end of the day the application was thrown out on the ground that and an appeal base on the same Criminal Case has been filed before the same District Court as Criminal Appeal No.; 27/2015 which was dismissed for want of prosecution on 04/11/2015. Therefore the same appeal couldn't be filed again in the same Court. Appellants aggrieved by that decision are not appealing against. The appeal is based on the following grounds: 1. The trial Court erred in Law when it struck out the Arusha District Court Misc Criminal Application No. 37 of 2015 on the ground that it to allow Arusha District Court Misc Criminal Application No. 37 of 2015 because it will result in having two Criminal Appeals in Arusha District Court of the first one being Criminal Appeal No. 32 of 2015 and the other to be filed after being granted the extension of time of time, all being based on the same Arusha Urban Primary Court Criminal Case No. 239 of 2014. 2. The trial Court erred in law when it decided that it was legally wrong to file an application for extension of time to file a Criminal Appeal out of time against the decision in Arusha Urban Primary Court Criminal Case No. 239 of 2014 after Criminal Appeal No. 32 of 2015 based on the same case has been dismissed. 2 ....., I. • 3. The trial Court erred in law when it declined to grant the Arusha District Court Misc Criminal Application No. 37 of 2015 so that illegalities contained in the proceedings and decisions in Arusha Urban Primary Court Criminal Case No. 239 of 2014 can be corrected by a superior Court. Parties -opted to argue the appeal by way of written submissions and they did file their respective submissions in support and opposing the appeal. I have gone through the trial Court record, grounds of appeal and the learned advocates submissions and find that the appeal is centered on what we can summarized to issue. The main complain of the appellant on the Arusha District Court refusal to grant extension of time to the appellant so that he can file his appeal, which was already filed in the same Court and struck out for want of prosecution. There is no dispute that appellant has filed Appeal No. 37 of 2015 challenging decision of the Arusha Urban Primary Court Criminal Case No. 239 of 2014. That appeal was struck out for want of prosecution. Now appellant file an application for extension of time so that he can file the same appeal and on the same Court which struck out the former appeal. The application at the District Court was filed under Section was filed under Section 20(4) (a) of the Magistrates Court's Act. That provision of the law provides: ''Notwithstanding the provision of subsection (3) (a)The District Court extends the time for filling an appeal either before or after such period has expired. 3 Now does the present situation fall under ambits of the above provision of law? I am of a firm view that it does not as this provision of law carters for a belate filed appeal but on an appeal which had already be filed in Court the above provision of law does not carter at all. That being the case it is obvious the application before the District Court was brought under a wrong provision of the Law. Any application brought under a wrong provision of Law does not have any legal force in the eyes of Law and equates if there is no such application in Court for consideration. Though the above findings can dispose off the matter but by the way let me consider the genuine of the application that is for extension of time so as to file an appeal of the same nature based on the same decision which was already filed in the same competent appellate Court which was struck out. Is that a legal remedy? As both parties submitted that there is no provision of any Law provides for a struck out appeal to be refilled again and therefore it is not a remedy and application has no justification to file afresh the struck out appeal. All he could do is to ask the trial Court to vacate its Order. r F.H. MASSENGI JUDGE 27/07/2016 Delivery in Court this 2ih day of July, 2016 in the presence of both parties. 4 "· Right of Appeal explained. I F.H. MASSEN(il JUDGE I 27/07/201~ s:I