Cosmas Mapembe Appeal Struck out

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IRINGA SUB- REGISTRY AT IRINGA CRIMINAL APPEAL NO. 10299 OF 2023 (Appeal from the decision of District Court of Njombe at Njombe in Criminal Case No. 99 of 2022) COSMAS MANG’ITA MAPEMBE……………………..APPELLANT VERSUS THE REPUBLIC……………………………………....RESPONDENT RULING Date of last Order: 20/06/2024 Date of Ruling: 20/06/2024 LALTAIKA, J. When this appeal came for hearing today, the appellant herein COSMAS MANG’ITA MAPEMBE appeared in person unrepresented. The respondent Republic on the other hand, was represented by Mr. Majid Matitu, learned State Attorney. Before proceeding further, the learned State Attorney raised a preliminary objection, asserting that the Petition of Appeal was filed out of Page 1 of 5 time, thus contravening section 361(1) (b) of the Criminal Procedure Act [Cap. 20 R.E. 2022]. Mr. Matitu contended that according to the records, the notice of appeal was filed on 8/2/2023 five days after the judgement and it was within time. However, Mr. Matitu reasoned, the petition of appeal was signed on 10/12/2023. It was certified by the Prison officer on 11/12/2023. The same was lodged in court on 22/04/2024. To this end, the learned State Attorney averred, the petition is out of time for more than 14 months. Nevertheless, Mr. Matitu reasoned, the Appellant had the chance to apply for extension of time to lodge his petition out of time because this court has discretion to grant after assessing grounds for delay. Consequently, Mr. Matitu argued, the appeal should be struck out. In response, the appellant had nothing to submit to counter the arguments of the learned State Attorney. Expressing his wish that his appeal would someday be determined on its merits, the appellant invited the court to decide what it considered just. Having reviewed the appeal in light of the submission by the learned Page 2 of 5 State Attorney, there is no doubt that Section 361(1) (b) of the Criminal Procedure Act stipulates that the time limit for appealing to this court from a decision of the subordinate court is forty-five (45) days from the date of the finding, sentence, or order. However, the same provision, section 361(1) (b) of the Criminal Procedure Act, includes a proviso requiring this court to exclude the days or time spent waiting for a copy of the proceedings, judgment, or order being appealed when calculating the 45-day period. For ease of reference and comprehension, the provision of section 361(1)(b) reads as follows: “361.-(1) Subject to subsection (2), an appeal from any finding, sentence, or order referred to in section 359 shall not be entertained unless the appellant: (a) N/A (b) has lodged their petition of appeal within forty-five days from the date of the finding, sentence, or order, save that in computing the period of forty-five days, the time required for obtaining a copy of the proceedings, judgment, or order appealed against shall be excluded.” The above-mentioned provision of the law was adequately stated by the Court of Appeal of Tanzania in its recent decision of SAID SHAIBU MWIGAMBO VS REPUBLIC (CRIMINAL APPEAL 420 OF 2021) Page 3 of 5 [2023] TZCA 148 (28 March 2023), on page 6, where it stated, among other things: “It is evident from the above provision that entertaining an appeal against conviction, sentence, or order is conditional upon the appellant, who has filed a notice of intention to appeal, lodging their petition of appeal within 45 days from the date of the impugned decision. However, the legislature, in its wisdom, anticipated circumstances in which copies of proceedings, judgment, or order may not be available immediately after the delivery of judgment. There is no denying that such circumstances are not uncommon among us. Consequently, it made allowances for the period necessary for the preparation of such documents by calculating the period from the date such documents are obtained...” In the present case, as correctly argued by Mr. Matitu, even after deducting the days spent waiting for the supply of a certified copy of the impugned judgement and proceedings, the appeal would still be out of time Page 4 of 5 for about 14 months. In the absence of an application for extension of time dully considered and granted, the appeal is amenable for striking out. In the upshot, I uphold the preliminary objection raised by the respondent and proceed to strike out the appeal for being incompetent. It is so ordered. It is so ordered. E.I. LALTAIKA JUDGE 20/06/2024 Court: This ruling is delivered under my hand and the seal of this court on this 19th day of June 2024 in the presence of Ms. Radhia Njovu, learned State Attorney and the Appellant who has appeared in person, unrepresented. E.I. LALTAIKA JUDGE 20/06/2024 Page 5 of 5