juma nkwabi luziga vs republic 2022 tzhc 14883 1 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO DISTRICT REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 19 OF 2022 (Originating from Criminai Case No. 221 of2019;in the District Court ofKiiombero, atIfakara) JUMA NKWABI LUZIGA APPELLANT VERSUS THE REPUBLIC RESPONDENT \ RULING 1^ Dec, 2022 CHABA,J. The appellant herein, Juma NkwabI Luzlga was charged before the District Court of Kilombero, at Ifakara with the offence namely,. Unnatural offence contrary to section 154(1)(a) and (2) of the Penal Code [Cap. 16 R.E. 2002] now[ R.E. 2022]. According the particulars of offence, it was alleged by the prosecution side that on between unknown date, day of January, 2019 and 27^^ day of July, 2019 at unknown time at Mbasa area, Ifakara within the District of Kilombero District in Morogoro Region, the accused, Juma Nkwabi Luziga did have carnally knowledge with one R d/o M (Her name withheld), a girl aged six (6) years old against the order of nature. Page 1 of 5 After a full trial, the appellant was convicted and sentenced to serve thirty (30) years imprisonment. Discontented with the trial court decision, the appellant.preferred the present appeal before this court intending to challenge both conviction and sentence. The Respondent / Republic was represented by Ms. Veronica Chacha, learned State Attorney and the appellant appeared in person, and unrepresented. When the appeal was called on-for hearing today on the day of December, 2022, alas the appdiant's appeal was hammered with the preliminary objection on a point of law raised by the Respondent / Republic for being out of time. Arguing In support of preliminary objection on a point of law, Ms. Chacha submitted in brief that according to the trial court record, the trial court delivered her judgment on April; 2021 and the appellant was supplied with the copies of both judgment and proceedings on the same day. Upon receiving the same, the appellant lodged his'notice of intention to appeal on the April, 2021 which is within ten days from the'date of the sentence and duly complied with the requirement of the law under section 361 (1) (a) of the Criminal Procedure Act [Cap. 20 R. E. 2022] (the CPA). According to the law 45 days expired on 10*^^ July, 2022. However) it appears that when the appellant filed his notice of intention to appeal within the prescribed period of time, he sit back and relaxed and forgot that still had a duty to comply with the law under section 361 (1)(b) of the CPA. The law provides that, an appeal from any finding, Page 2 of 5 sentence or order referred to in section-359, shall not be entertained unless the appellant has lodged his petition of appeal within forty-five days,from the date of the finding, sentence or order. The learned State Attorney highlighted, since the court records is clear that the appellant filed his petition of appeal on 27^^ May, 2022 which is almost 13 months from the date of pronouncement of the sentence, this appeal. She finally the court to struck out the .appellant's appeal for being incompetent before the court. On his part, the appellant had nothing to reply as he said at the material time had no idea in respect of his appeal and what the learned State Attorney submitted before this court. However, he finally conceded that his appeal was out of time. Having heard both parties, and carefully gone through the court record, it is clear that the present appeal was-filed beyond the prescribed period of time. As correctly submitted by the^learned State Attorney, filling a petition of appeal before this court is governed by the CPA (Supra). The law says: "Section 361(1)- Subject to subsection (2), an appeal from any finding, sentence or order referred to in section 359 shall not be entertained unless the appellant: - (a) has given notice of his Intention to appeal within ten days from the date of the finding, sentence or order or, in the case of a sentence of corporal punishment only, within three days of the Page 3 of 5 date of such sentence; and (b) has lodged his petition of appeal within forty-five days from the date of the finding, sentence or order". Reverting to the court record, the trial court delivered her judgment on 1/4/2021 and the appellant was supplies with the copies of both judgment and proceedings on the same date and-filed his notice of Intention to appeal four days later on 5/4/2021. However, his petition of appeal was lodged before this court ready for hearing of the appeal thirteen (13) months later on 27/5/2022. As gleaned from the above sequence of events, it is noticeable that the appellants' petition of appeal is not- within the governing principle of laws for j j one reason that from the inception of the petition of appeal, it was incompetent. In the circumstance, I am unable to entertain an appeal filed out of time unless leave is granted to that effect. As provided by the law under section 361 (2) of the CPA, this court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed. Hence, based on the afore-stated provisions of the law, the applicant still has an opportunity to apply for an extension of time to file his appeal out of time. In the upshot, this appeal is incompetent and accordingly, Its is hereby struck out forthwith. It is so ordered. DATED at MOROGORO this 1^ day of December, 2022. Page 4 of 5 M.l.CHMA JUDGE 1/12/2022 Right of to the parties fully explained. 0;^ M. J A Om c e? JUDGE X uJ m > -s^ 1/12/2022 Page 5 of 5