jarome hamedeus vs republic 2009 tzca 45 28 october 2009

IN THE COURT OF APPEAL OF TANZANIA

AT DODOMA (CORAM: MSOFFE. 3.A.. RUTAKANGWA. 3.A.. And BWANA. 3.A.) CRIMINAL APPEAL NO. 478 OF 2007 3AROME HAMEDEUS.................................................................. APPELLANT

VERSUS THE REPUBLIC........................................................................RESPONDENT (Appeal from the Decision High Court of Tanzania at Dodoma) (Masanche, 3.) dated the 3rd day of April, 2007 in Criminal Revision No. 3 of 2006

ORDER OF THE COURT MSOFFE, 3.A.: The District Court of Mpwapwa (Raphael, SDM) convicted the appellant of two counts of causing death through dangerous driving contrary to Section 41 of the Road Traffic Act No. 30 of 1973. He was sentenced to pay fines of shs. 80,000/= and shs. 75,000/= or one year imprisonment in default in the two respective counts. In exercise of its revisional jurisdiction the High Court (Masanche, 1 ) set aside the sentences and sentenced the appellant to consecutive terms of two years imprisonment. That was on 3/4/2007 in the absence of the appellant. The judge made a further order for the copy of the Revisional Order to be given to the Principal State Attorney, Dodoma with directions to ensure that the appellant was arrested and committed to prison. From the information availed to us the appellant was arrested and committed to prison on 26/6/2007. The following day, i.e. on 27/6/2007, he lodged a notice of appeal against the decision of Masanche, J. The address of service given in the said notice was that of Mr. Njulumi & Co. Advocates. Although under Rule 61 (1) of the Tanzania Court of Appeal Rules, 1979, hereinafter the Rules, a notice of appeal has to be given within fourteen days of the date of the decision, technically in this matter the notice of appeal was given within time because it was not until 26/6/2007 when the appellant knew of the

decision. In this regard, the notice instituted the appeal as per the above sub-rule. From the available record, there is no evidence that the Registrar ever served the appellant with the record of appeal. In this context, in terms of Rule 65 (1) of the Rules there was no way the appellant could have lodged a memorandum of appeal within fourteen days because he is yet to be served with a record of appeal. 2 At the hearing of the appeal it transpired that the appellant was released from prison on Presidential pardon on 9/12/2008. This information was relayed to the Court vide letter Ref. No. 112/DO/5/11/84 dated 26/10/2009 from the Prison Officer, Msalato Prison. In the meantime, efforts at tracing the appellant for service on him of the notice of the date of hearing were made but they ended up being an exercise in futility. His whereabouts are unknown. At the same time, Mr. Zakayo Njulumi, learned advocate, wrote a letter to the Court to say that his instructions were to prepare the notice of appeal only. It is also evident from the information made available to us that after the release the appellant has never followed up the conduct of the appeal. At the hearing of the appeal we appraised Mr. Faraja Nchimbi, learned State Attorney for the respondent Republic, of the above background information and accordingly invited him to address us on what step he thought would be best

for us to take in the matter. Without hesitation, he was of the view that we dismiss the appeal with liberty to the appellant to restore it, if he will wish to do so in future. With respect, we agree with him. It occurs to us that an adjournment will not serve any useful purpose. We are saying so because since the whereabouts of the appellant are not known it is not certain that he will ever be available for service. At the same time we are also anxious that the appeal should not remain pending indefinitely. For the above reasons, we hereby invoke the provisions of Rule 3 (2) (a) of the Rules and accordingly dismiss the appeal with liberty to the appellant to restore it if he will wish to do so. DATED at DODOMA this 28th day of October, 2009. J. H. MSOFFE

JUSTICE OF APPEAL E.M.K. RUTAKANGWA

JUSTICE OF APPEAL S. J. BWANA

JUSTICE OF APPEAL I certify that this is a true copy of the original. (Z. A. MARUMA)

DEPUTY REGISTRAR