20100722 TZCA Mbeya

; IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MUNUO, J.A., LUANDA, J.A. And MJASIRI, J.A. CRIMINAL APPEAL NO. 253 OF 2009 . : I KEN EDY MWAKATIKA ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• ••• ~i••••••• APPELLANT . VERSUS: THE REPUBLIC . ............................................•............................ JI•••• RES PON DENT I (Appeal from the decision of High Court of TanJania I at Mbeya) (Mackanja, l) Dated 2nd day of December, 2002 In Misc. Criminal Applicatien No. 83 of2001 RULING OF THE COURT 22N° & 23RD July, 2010 LUANDA, l I I . In the District Court of Mbeya sitting at Mbeya, the above named I appellant was charged with rape. He, was convicted i as charged and sentenced to thirty (30) years imprisonment. The trial cburt informed him I! 1 d I his right to appeal to the High Court. The judgment of tHe District Court I was delivered on 13/12/1999. I I i I On 14/11/2001 after a period of more than one year, I the appellant I I filed a chamber application supported by an affidavit in th~ High Court for I leave to appeal out of time. The said application did not ~ite any enabling provision of any law. The High Court (Mackanja, J) howJver, entertained I the application. I I I The High Court made the following observations in its Ruling of I I 2/12/2002. One, it did not buy the appellant's story that he was sick for all I i that period. In other words the High Court found out that no sufficient reasons were adduced for such a delay~ Two, even if thie sickness of the i appellant was to be taken into account, the intended appeal I would be time . barred as no notice of appeal was lodged. The High Coilirt concluded, we quote:- "Upon the two considerations herein (above) I I referred to the appeal lacks merits and it is accordingly dismissed." 2 Of course that was wrong as there was no appeal before the judge. Be that as it may, the appellant was aggrieved by the finding of the High Court. He lodged the notice of appeal and eventually filed his memorandum of appeal. In his memorandum of appeal, the appellant raise9 three grounds touching the merits of the case. For reasons which will i be clear in this Ruling, we will not go into the details of the grounds of appeal raised. When the appeal was called on for hearing, Mr. , Vincent Tangoh learned Senior State Attorney for the Respondent/Republic informed the I Court that the appeal is incompetent as the High Court is yet to entertain his appeal. At best, he went on, the appellant can a~peal against the Ruling. He prayed that the appeal be struck out. On our part we are of the settled view that even the Ruling of the High Court has no leg to stand, hence the Ruling. We wm explain. 3 We have already seen that the Cha~ber application ~id not cite any enabling provision of any law from which the High Court dfrived its power to entertain. the application. What is the co~sequence of sudh I failure? . 'I i I It is now settled that non citation; or wrong citation renders the ·' I matter before the Court incompetent and is liable to bi struck out. In Magwila Mwashela VR Criminal Appeal: No 76 of 2007,/ Court of Appeal Mbeya the Court said, we quote; "Though the principle emanates from I Civil .Proceedings, the same is applicable to Cri minal 1 I proceedings as well." I i Since the High Court was not properly m9ved, the learneq judge ought not I 1 to have entertained the application. Th e High Court proceedings are a I I nullity. The matter before us is incompetent. Exercising our revisional powers a~ they are provi~ed under section 4(2) of the Appellate Jurisdiction Act, Cap 141 the proceedings of the High I . Court are hereby quashed and orders m~de therein set afide. 4 I I I As regards the purported appeal, the same is struck I out under Rule i 4(2) (a) ofthe Court Rules, 2009. The appellant is at liberty to start afresh I I his application for leave to lodge a notice of appeal out I of time and to I appeal out of time in the High Court. It is so ordered. Dated at Mbeya this 22 nd day of July, 2010. ' E. N. MUNUO JUSTICE OF A1PPEAL B. M. LUANDA JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I I I 5 I I