joseph so mahona joseph gembemboje vs republic 2008 tzhc 196 14 april 2008

IN THE HIGH COURT OF TANZANIA AT TABORA.

APPELLATE JURISDICTION (Tabora Registry) MISCELLANEOUS (DC) CRIMINAL APPLICATION NO. 78 OF 2005 ORIGINAL CRIMINAL CASE NO. 105 OF 2004

OF THE DISTRICT COURT OF SHINYANGA DISTRICT AT SHINYANGA. BEFORE: M.R. GWAE,Esq; RESIDENT MAGISTRATE JOSEPH S/O MAHONA@ JOSEPH -i @ GEMBEMBOJE j ...... APPELLANT (Original Accused) /

VERSUS THE REPUBLIC.............................. RESPONDENT (Original Prosecutor)

RULING 17th March,08 & 14th April, 08 MUJULIZIJ. This is an application for an order that; the applicant be allowed to submit his notice of intention to appeal out of time, and for any other order which court may deem fit, and proper to grant in the circumstances. The application is supported by the affidavits of Joseph s/o Mahona, the prisoner/applicant and that of SSP Uwesu H.O. Ngarama, the Officer In-Charge of Shinyanga Prison. However, l f the application does not specify under what provisions of the law it is made. The jurisdiction of the High Court in this event, to admit an appeal out of time is provided by section 361 (2) of the Criminal Procedure Act, (Cap 20 R.E. 2002). That would have been the appropriate section to be cited under the application. Non citation of the section of law under which an application is made renders the application defective and such an application would be liable to be struck off the register. However, when this matter was brought before me for admission. I admitted the application, not for hearing, but for purposes of giving necessary orders in the presence of the parties, so as to avoid future futile attempts, in the same course and cause. My order was stated as follows; "DR. Admit for mention in chambers on 06/02/2008. However for the record the application is not maintainable by reason that the applicant was convicted on his own plea

of guilt on 06/05/2004 and consequently given the minimum sentence pursuant to Minimum sentences Act, (Cap 90. R.E. 2002). Now according to section 360 (1) of the Criminal Procedure Act, (Cap. 20.R.E. 2002). 2 "5. 360- (1). No appeal shall be allowed in the case o f any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality o f the sentence." The charge were read to him (applicant) in hospital before the court which took his plea. The fact that the proceedings were conducted in a hospital would not affect the fact that the court was duty constituted. Admit for necessary orders on • 06/02/2008. Notify parties." So it was. When the Applicant appeared before me in the presence of Mr. Mokiwa, learned State Attorney for the Respondent Republic, I explained the above position of the law. As if to explain away this position, the applicant claimed before me, that he was unconscious owing to the severe cut wounds on the head, as highlighted by the big vertical scar on his face, and that therefore he was not aware 3 of what transpired, (the circumstances) leading to his conviction. Unfortunately, that allegation is not part of the evidence contained in his affidavit. The court could not therefore rely on his statement made before the court and not being on oath, and, the forum, not being appropriate. However,

the record constituting his trial and conviction shows that he participated fully in the proceedings up to adducing evidence for mitigation before being sentenced. Be what it may, the position of the law: section 360-(l) bars the jurisdiction of this Court from entertaining an appeal against a conviction on an unequivocal plea of guilt: LAWRENCE MPINGA V.R. (1983) TLR 166. In this instance, the application seeks to extend time to enable the applicant to file a Notice of appeal and thence Petition of Appeal. However, the Petition of Appeal attached to the application does not even seek to challenge the sentence, but the conviction and by consequence the sentence. It is therefore not tenable. According to section 360 (1) the appeal would only be entertained "to the extent if or legality of the sentence. The applicant, subject to 4 complying with the procedural requirements can seek to appeal only against the sentence in case he is convinced it was either illegal or excessive. For the above reasons the application is incompetent and would in any event not be tenable. It is therefore struck off. A.K. MUJULIZI

JUDGE 14/04/2008 Ruling, delivered in the presence of the applicant and Mr. Beda learned State Attorney for the Respondent Republic. ORDER: Copy be supplied to the applicant/prisoner.

JUDGE 14/04/2008 5