20100630 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA

AT DODOMA MISC. CRIMINAL APPLICATION NO. 25 OF 2009 {ORIGINAL CRIMINAL CASE NO. 57 OF 1998

OF SINGIDA DISTRICT COURT AT SINGIDAJ HAMISI MFAUME ....................... APPLICANT Versus THE REPUBLIC ....................... RESPONDENT 28/06/2010 & 30/06/2010

RULING HON. MADAM, SHANGALI, J. The applicant HAMISI MFAUME was convicted on the offence of murder and sentenced with the mandatory sentence of death by hanging. That was back on 30/11/2000. No appeal was lodgecl and filed in terms of section 68 of the Tanzania Court of Appeal Rules. Now, the applicant have filed this application :under section 11 of the Appellate Jurisdiction Act, No. 15, 1979 and Rule 8 of the Court of Appeal of Tanzania Rules seeking for leave to file his notice of intension to appeal and memorandum of appeal out of time. I I 2 His application is duly supported by an affida'vit deponed by himself. From his affidavit the applicant has shifted the whole blame I 1 of delay to lodge his notice on the Isanga Prison Auth ority - where he ' has been held since he was sentenced. He stated ~hat immediately and within time after his conviction he submitted his notice of intention to appeal to the Officer-in-Charge of IsanQa Central prison but the later failed to lodge the same before the c'ourt in terms of I section 68 of the Tanzania Court of Appeal Rules. I Ms. Shio Learned State Attorney who · appeared for the respondent/Republic did not oppose the application'. She intimated that normally where the accused has been s~ntenced to the mandatory sentence of death the appeal is automatk and that it was the duty of the advocate who was assigned to def~nd and hold

the accused/applicant's brief to file the notice of intention to appeal on time. Although she did not say anything about the: reasons of delay submitted by the applicant, I believe that she was convinced as well, that the delay was caused by Prison Officials who failed to lodge the applicant's documents in court. My believe is based on the fact that no counter affidavit was filed by the respondent/Republic. Having said so, I proceed to hold that the application for filing the notice of intension to appeal out of time is tenable in law. At the sametime I am of the view that the application to. file Memorandum of Appeal out of time is premature and misconceived. The stage and i 3 procedure for filing the memorandum of appeal is duly provided under the provisions of Rules 72 and 73 of the T:anzania Court of Appeal Rules 2009. At this stage it is enough to grant extension of time for filing the Notice of Appeal. Therefore, the applicant is given thirty (30) days from todate to file his notice of intention to appeal in terms of Rule 68 of the Court of Appeal, Rules.

JUDGE 30/06/2010 Ruling delivered todate 30/06/2010 in the, presence of Mr. Wambali, learned State Attorney for the respondent/Republic and the applicant in person. M.S.S~LI

JUDGE 30/06/2010