20100315 TZCA Tanga

IN THE COURT OF APPEAL OF TANZANIA

ATTANGA CRIMINAL APPLICATION NO. 11 OF 2009 FESTO JOHN· KIMATI ................. i.............................. APPLICANT Versus THE REPUBLIC ... ■■ • ■ • ■■ • I. ■•■■ I ■■■■•■■■I I. ■■■■ I ■■■■■■■ ••••••••••• RESPONDENT

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I I I (Application for extension of time to file review from the Judgment of the Court of Appeal of Tanzania atTanga) (Makame, J.A., Munuo■:, J.A., And Kaji J.A.,) ' th Dated the 6 day of July, 2006 In Criminal appeal no. 66 of 2005 •••••••••••••••••••

RULING ' I 12 & 15 March, 2010 I I I MSOFFE, J.A: I! This is an application for enlargeri,ent of time to file an application for ' review of this Court's judgment in Criminal Appeal No. 66 of 2005 delivered ' on 6/7/2006. In the appeal this Court ~pheld the High Court of Tanzania at Tanga (Mkwawa, J.) in the conviction of the applicant of the murder of ' ' Ismail Hassan on 20/9/1996. Under paragraph I 3 of the affidavit in support I I of the application the applicant avers. that he intends to challenge the ! 1 j I merits of the judgment in the intended review. With respect, as observed by my brother Mandia, J.A in Miraji Seif versus Republic, Criminal Application No. 2 of 2009 (unreported) no review lies pn the merits of a decision of a Court. Review is available to address: irregularities of a i decision or proceedings which have caused injustice to a party. I will add I two other matters. One, a review is not an appeal. Two, with the coming i into force on 1/2/2010 of the Tanzania Court of Appeal Rules, 2009, I '1 Rule 66 (1) thereof sets out the grounds for review. U,nder sub rule (3) an application for review must be filed within 60 days from the date of the judgment or the order sought to be reviewed. In this application the i applicant does not say if he intends to canvass any of the grounds prescribed under sub-rule (1) above. Under the above paragraph the applicant has

alsd canvassed another point. He is attributing the delay in filing an applicatioh for review within time to prison authorities. He is trying to say that he was not given the necessary co-operation and assistance by the said authorities. With ' respect, in the absence of an affidavit from the p~ison authorities to I confirm the allegation the point remains unsubstantiated and I cannot act on it. 2 This application was lodged on 2/7/2009 which was a period of almost four years from the date of the decision intended to be reviewed. On the basis of the material before me no sufficient reason has been advanced to explain away the delay. The application has no merit. It is accordingly dismissed. DATED at TANGA this 13th day of March; 2010. J. H. MSOFFE

JUSTICE OF APPEAL I certify that this is a true copy of the origim;JI. ~ ~ .· ~ V1 ~: (N. N. CHUSI) I>/J, DEPUTY REGISTRAR ii' ~- z:.. 3