19970425 TZHC Mwanza

IN THE HIGH COURT u '.J.1~·,sz:~r-.m ·- AT MWANZA MISCELLANEQUS CRD'iTI-L1.L i~PfLICi.TION NO. 73 OF 1995 : Jn the Matter of an ,\ppli:::::ttion for Leave to Appeal • ., Out ef time - . . In the Matter oc C:riminal Case iJo. 398 of 1994 -~ To. the District Court of ·.'..'ari:ne District at Tarime ISAKA RYQ&\ • • • • • •••• o • • ~. o • • • • . o. o • ., o • • • o ll.PPLIC.iU~T VERSUS JOAS~ 'l'flAROOE WARYOBA RESPONDENT --- RUI..ING ------ MASANCHE J. t This is an appli~tion for leo.ve to appeal to this Court -tn1t -of time. The application is a.-cco~ied with an affidavit. The case originated in a primary court~ There, at the primary Court of Shirati, in Tarime, the applicant~~ajel. &".£!>~ 1 averred that +11e· resp•r:dent,Joash Waryoba has~burglad into/house and had stolen a ~t~r!.,?! from there in. The mattress hnrl ~ cover, but ten days later a matt.esa without cover was discovered in th~ po.ssession of the respondent. The respondent wus sent to Court anci oo:1•tic tcd, He was s0ntenced to five years imprisonment. On an appeal to the District •;ourt, the appeal was allowed. Mr Mabondo DM argued that the appellant hatl n.')t ·identified the mattress satisfktorily. I have given the facts of th-'.:! cMi0, at that early .si:a.ge. diliberaw~ as _I will shortly show. The applicant tells me that :i.e t,:)u:d not appeal against the iieeision of the District Court, allowinr; the a~~iw, of the respondent. because he did not know when the responde!"t hn,dl-tiseharged from prison. He ,onlj bumped into him in the street. When he went to the District Court ~ . ask why the respondent was freely weJt..:i..ng in the streets, he was t~d that }\e (respondent) had won the aP:9eal. •..:.1e ar.,plic~'1t therefore, asks t.a ~- allowed to appeal c-ut ef ,_time. ~ ;. ... · . The law about such application is ~'lµ.te clear; There must be. ~ . : ; of su•~ in the intended appeal~ I ha~ ~ ~ the. reeo.rc:.. · The facts of the case are eJ!· I have narrate¾ I see no chw,ceB to the hppella.nt winning the appeal. ' The article, mattrQss, that th<: &iJpdJ.:mt ®d respondent are grappling upon .:. •.••• •/2-. I "' - 2 is a ~~.£!2 articl~, There are just so many mattresses in the market _¥,j.J22 ,r '4_tp.o,~t cover., We are 'told that the respondent, in fact priduced a receipt for the mattress which was found .. . . in ,. .. his.possession. I agree with the learned district magistr2.tc in the fi:cst ,appellate Court that there was not that evidenc.e •n which to convi"ct~ This application for uppcal out of time i,s rej ect,ed~ I .• . - I '\\, , . ,. I) (i,..--· ___ --·<.,,.,.... AT MWANZA J, E, ·c. _Vi!.S;,N~ 25th April 1997 -----•\7= . JUDGE ;r _.l-1.pp~.l:J.~t: present· in person Respondent: Present in person :..:-- .. . .. ... ' : .,,.• , ... 'I, . .. . ,,, l •