jilala daudi vs republic 2023 tzhc 16558 31 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL APPEAL NO. 99 OF 2022 (Originating from Criminal Case No. 81 of 2016 from District Court of Maswa at Maswa) II LALA DAU 01 APPE LLANT VERSUS THE REPUBLIC RESPONDENT RULING 22nd ssi" March 2023 MASSAM, J: Appellant lodged this appeal under section 362 of criminal procedure Act cap 20 R. E 2019 together with notice of appeal made under section 361 (1) (a) of the CPA CAP 20 R.E 2019. Brief facts of this case was that the appellant was charged with two counts first burglary cis 294 1 (b) and second count was stealing under 1 section 258 (1) read together with section 265 of the penal code. At the trial appellant was found guilty, convicted and sentenced to face imprisonment of 20 years imprisonment for first count and seven years imprisonment for second count on ih march 2022. According to the court record the copy of judgment was certified on 1ih March 2022. Aggrieved with the decision he appealed to this court on 5/12/2022 having filed the notice of appeal onio" March 2022 which was within prescribed period of time. When this appeal was called for hearing appellant appeared in person unrepresented while the respondent was represented by Ms. Glory Ndondi state Attorney. When entered appearance she raised a preliminary objection on the ground that appeal is bad in law as it was filed out of time without applying for the leave or extension of time. She added by stating that appellant filed his appeal against requirement of section 361 (1) (d) of CPAwhich required the appellant to file his petition within 45 days but appellant did not comply with it. 2 She submitted that the trial court judgment was delivered on 7/3/2022 and notice of appeal was filed on 10/3/2022 which was within time but the petition was not filed within time as it was filed on 5/12/2022 nine months after the delivery of the judgment, and failure to comply with requirement of law make the appeal before this court incompetent and supposed to be strikeout, as the appellant was required to file leave or extension of time. As a matter of procedure this court was obliged to determine this objection first before entertaining this appeal and if the ground raised if stand this appeal will collapse automatic but if failed this appeal will be heard on merit. Responding to the respondent submission appellant prayed this court to hear his appeal as he filed his appeal on time, also he was in custody and admission officer insured him that he is within time as he filed it on time. He added that he signed his petition of appeal on October after collected it on 4/7/2022 and forward his appeal on time but he don't know when the court received the same, so he pray this court to hear his appeal as he was within time. Again, he told this court that it is third time now he 3 is trying his appeal and fail to be heard for different reasons. Lastly, he prayed to this court to consider the time he spent to the prison and left him free. In her rejoinder Ms. Glory Ndondi for respondent told this court that the court record speak itself that the appeal before this court was filed out of time, insisted that even though appellant received his copy of judgment on 4th July 2022 still his appeal was filed out of time This court after heard over submissions of both parties and peruses the petition of appeal and its reply the main issue to discuss is whether the objection raised has merit. This court on perusal of the court record finds out that there is no objection that the appellant was convicted on 7/3/2022, and on 10th March 2022 he filed a notice of appeal which he was within the time, and appellant said that he was not given his copy of judgment on ih March 2022 but on 4/7/2022 also he informed this court that he signed his petition on October 2022, and admission officer told him that he was within time ,but there was no prove brought on that issue by appellant, so the issue here is when appellant was supposedto file his appeal? 4 The law under section 361(1) (b) of CPAis very clear that appellant ought to file his appeal within 45 days from the date of collection of his copy of judgment as time spent for collection of copy of judgment excluded under the above provision of the law. If appellant was given his copy of judgment on 4/7/2022 and signed the said document on October as he stated still, he was supposed to file his appeal within 45 days from 4th July 2022 when he collected his copy of judgment but he filed it on s" December 2022 when it was almost five months had already elapsed thus, it is hopelessly out of time, so he was required to apply for leave or extension of time. So according to the foregone reasons this court is in support of the respondent submission that this appeal is out of time and thus it is incompetent before this court which required to be strikeout. So, this court is hereby accepting the objection raised that it has merit. In the final event this appeal is incompetent before this court so, I proceed to struck out for being filed out of time. Appellant is at liberty to file his appeal after complying with the law. 5 It is so ordered. R.B. Massam JUDGE 31/03/2023 6