hassan charles 1 another vs the republic 2023 tzhc 18503 26 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF TABORA

AT TABORA MISC. CRIMINAL APPLICATION NO. 19 OF 2023 (Originating from Original Criminal Case No. 67 of 2021 of Tabora District Court) HASSAN CHARLES............................................1st APPLICANT SALUM MASANJA..............................................2nd APPLICANT

VERSUS THE REPUBLIC....................................................RESPONDENT

RULING Date: 26/06/2023& 26/06/2023 BAHATI SALEMA, J.: The two applicants herein named Hassan Charles and Salum Masanja were charged and convicted for the Offence of Stealing contrary to sections 258(1) and 268(1) and (3) of the Penal Code, Cap. 16 [R.E 2019]. After a full trial, on 07/09/2022 they were convicted and sentenced to serve 15 years imprisonment. Since the prescribed time to lodge a notice and petition of appeal has lapsed, the applicants have moved this Court by way of chamber summons with supporting affidavits praying the Court to grant them an extension of time to lodge both notice and petition of appeal. In the supporting affidavits sworn by the applicants, they raised two grounds upon which they pray consideration of this Court to grant them an extension of time, these are: 1 1. That, on 10/12/2022 and 28/12/2022 they filed notice and petition of appeal respectively through online method but since that time they did not receive a summons to appear to prosecute their case.

2. There is also a point of law involved in the decision sought to be appealed against, which they consider of sufficient importance with overwhelming chances of success. That the conviction was entered against the weight of evidence adduced. When the application was called up for hearing, the applicants appeared in person unrepresented whereas the Republic was represented by Mr. Dickson Swai and Ms. Wivina Rwebangira learned State Attorneys. At first, Mr. Swai submitted that Paragraph 7 of the affidavit in support of the application contains legal arguments which render the whole affidavit defective, the applicants remained mute as they had nothing to add to the legal objection raised by the respondent. Upon considering the submission made by the learned Counsel in respect of that paragraph, the Court ordered the removal of that single paragraph and proceed with the hearing. When the applicants were given time to submit the application they had nothing to add rather than a prayer to the court to adopt their affidavits to form their submissions. On the other hand, the Republic had no objection, they supported the application and rested the case to the Court for determination as I hereby do. As noted from the affidavit technological advancements come with unforeseen hardships, the introduction of electronic filing of cases in our Courts came with its hardship, especially to

those who are far bridged by the digital divide like the convicts in our prisons. 2 The applicants in this application informed this court that on the quest to challenge the decision of the trial Court, they filed an appeal in time through an online portal but they never received a call back from this Court that is why they ended up finishing the prescribed appeal time before the same could be accepted to the digital systems. Anyone who enters this technological trap as the applicants did, has no other way to get out of it than to bring an application of this kind. Apart from the respondent acknowledging the applicant's application, I am also convinced with the reason for the delay advanced by the applicants, therefore I grant the application with orders that the applicants should file a notice of appeal within ten (10) days and Petition of Appeal within thirty (30) days from the date of this ruling. Order accordingly. A. BAH ATI SALE MA

JUDGE 26/06/2023 Court: Ruling delivered in presence of both parties. A. BAHATI SALEMA

JUDGE 26/06/2023 Right of Appeal fully explained.

JUDGE 26/06/2023 3