mathias herman another v republic 2023 tzhc 19690 22 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA zx/ AT BABATI CRIMINAL APPEAL NO. 15 OF 2023 (Appeal from the conviction and sentence from the decision of the District Court of Babati in Criminal Case No. 24 of 2020 Hon. V. Kimario-RM) MATHIAS HERMAN............................................................ 1st APPELLANT ROJAS APOLINARY....................................................... 2nd APPELLANT VERSUS REPUBLIC........................................................................... RESPONDENT RULING Date: 22/3/2023& 22/3/2013 BARTHY, J. The appellants were arraigned before Babati District Court (hereinafter referred to as the trial court) charged with one count of armed robbery contrary to Section 287A of the Penal Code [CAP 16 R.E 2019]. It was alleged before the trial court that, on 14th January 2020 at Ngarenaro area in Babati District the appellants being armed with a knife did steal one motorcycle with registration number MC. 882 BWQ and one i mobile phone make X-Tigi B310 the properties of one Omari Selemani. It was alleged that the appellant used the knife to threaten the victim in order to retain the property. After a full trial the appellants were convicted and each sentenced to 30 years imprisonment. The appellants were not amused with the conviction and sentence meted against them; the appellants intended to challenge the decision of the trial court out of time. Thus, through Miscellaneous Criminal Application No. 56 of 2022 they thought for an extension of time to file notice of appeal and petition of appeal out of time against the conviction and sentence imposed by the trial court. It is on record that, the application was granted and the appellants were required to file notice of appeal and the appeal within 14 days and 21 days respectively. The appellant lodged a joint petition of appeal consisting of five grounds of appeal which will not be reproduced hereunder for the purposes of this ruling. 2 At the hearing of this appeal, the appellants appeared in person, while the respondent was represented by Ms. Grace Mgaya, the learned state attorney. Ms. Mgaya however raised the preliminary objection on the point of law that the appeal is time barred. She went on to submit that, in Criminal Application No. 56 of 2022 the appellants were granted 21 days to file the notice and appeal from the decision issued on 22/8/2022. However, the instant appeal was filed in this court on 6/2/2023 out of time extended by this court. On the reply by the first appellant, he stated that the failure to file their appeal within time was out of their control. The second respondent counter argued that, they were granted leave to file the appeal out of time and they prepared the same and filed it before the High Court at Arusha, but it was returned with instruction to file it before this court. The second appellant claimed he had the proof of the same, but none was backed up in his petition of appeal to substantiate his claims. 3 Having gone through the partie's rival submission the sole issue for determination is whether the appeal is time barred. It is not in dispute that the appellants were granted the extension of time to file the notice and petition of appeal out of time, vide Miscellaneous Criminal Application No. 56 of 2022. Whereby the same was granted the leave on 22/8/2022 being 14 days to file notice of appeal and 21 days to file the appeal. The claim that this appeal was prior lodged in the registry of Arusha and the same was returned to be filed before this court is considered to be an after-thought. As this court started its operation after Government Notice No. 611 of 2022 dated 28/10/2022 and it started its operations from November 2022 with few cases transferred to this court. This therefore meant, the said appeal was to be filed not later than 13/9/2022. However, the instant appeal was filed in court on 6/2/2023 over 4 months later. There is no plausible explanation from the appellants as to why the appeal was not filed in time. Since the appellants have failed to file their appeal within the extended time this makes the appeal before this incompetent for being time barred. 4 The only remedy therefore is to struck out the appeal for being time barred. It is so ordered. DATED at Babati this G.N. BARTHY JUDGE 23/3/2023 Delivered in the presence of the appellants in person and the Ms. Grace Mgaya for the respondents. 5