20120224 TZCA Arusha

· "' ,, •'.\i·i- ~Yt l!i ' .. f . 1 IN THE COURT OF AP:rEAL OF TANZl NIA (CORAM: MUNUO, l.A::::J;:~A., And M . NDIA, J.A.) CRIMINAL AP~E4 -~O 215 OF 20r9 LOMAYAN KJTOI TEVEL. ............... r············ .................. APPELLANT AND l OLTOBWAI NGOWOL SAKITA ....... ~ ............................. RESPONDENT 1 : 1 I - (Appeal from the judgment of the High Court Of Tanzania at Arusha) · ' \ ), (.Choch~, J.) ., ! ·~. ·. l . •. .• ·:1 dated the 13th day of February 2009 ij I (PC) Crimina·I .App~al No 3 of 2007) ,,(j ~- ii~j' 1 RuL1NcfoiF ■rliJE couRT .' ' '. I . '.; I ------------~-r~~--------- ::.. th th 20 & 24 February, 2012 KILEO, J. A.:· This is a ruling pursuant to a prelimiriary objection raised under Rule 107 . ;! I (1) of the Court of Appeal Rul~s,· 2?i99 by Mr. Nelsoln Merinyo, learned • . I counsel on behalf of the responden~ 9gainst the appeal filed by Lomayan Kitoi Tevel. The appeal is in a maJr that originatjd from the Primary Court of Emaoi in Arusha District~Tiil~•.!i~therefore a third appeal. ' ~.•,I i ' ., i 1, '' Objection by the learned counsel is on two main grounds: One; that the appeal is barred by period of limitation and second; that it violates the provisions of section 6 (7) (b) _:~i th~ Appellate Jurisdiction Act, Cap 141 ' . '- R. E. 2002 as no certificate was issued to certify that there was a point of law involved in the matter to warriant intervention by the Court of Appeal.. I ,f''' l ··: -~r ;·;' • '.,,!'1j'' ! I. . ,\c In his oral submission bef~~~--u~ Merinyo pointed out with respect to the first ground that since the judgment which is sought to be appealed against was delivered on 13.02.2009 then the Notice of Appeal which was lodged in Court on 9.04.2009 was out time as in terms of Rule 68 (1) of the Court of Appeal Rules, 2009 the notice of appeal was supposed to be ' ' ' :it •. , ' lodged within 30 days of the decision sought to be appealed against. i On the second point of preliminary objection Mr. Merinyo submitted ' i that the appellant was required.«~: 0btqJp a certificate from the High Court r ... ' ' .· ,.:,t ·I • \ ··' in terms of section 6 (7) (b) certifying that there was a point of law involved in the matter which required the intervention of this Court. Basically, the appellant did not have much to say save I that he did not understand the procedure involved in processing his appeal. 2 I, 1; ' The decision by which the appellant was aggrieved was given on th 13.02. 2009. The appellant filed his Notice of Appeal in this Court on 9 I April 2009. The Notice was lodged 54 days after the delivery of the I decision sought to be impugned.•The decision was given and the Notice of 1 ,·Hlr1 fy . ~; I,' ,. , ' :-;, .,> ' Appeal lodged when the 1979 Court' of Appeal Rules ~ere still in force. Rule 61 of the 1979 Rules is the relevant Rule which proyides: ,,/· ·;., / I.► ' 61. - (1) Any person wh<fdesires to appeal to the Court shall . ' give Notice in writing, which shall be lodged,in triplicate with the registrar of the High Court at the place where the decision against which it is desired to appeal was given, ' ' I within fourteen days of the date of that decision, and the notice o appeal shall institute the appeal. i We need not detain ourselves. The appeal which was instituted by I the Notice of Appeal, it being a criminal appeal, was obviously outside the ),· \. . . ·. .· I period of limitation. This is not :all~· Thi${being a third appeal the appellant was required to obtain a certificate ·iri' .terms of section 6 (7) (b) of the ,i: Appellate Jurisdiction Act indicating the points of law for determination by the Court of Appeal. The said section provides: 3 I -· (1) Any person convicted on a trial held by the High Court or by a subordinate court exercising extended powers may appeal to the Court of Appeal- (a) .......... (b) ••••••••••••• (i) •••••••••••••• ,' ~]fl. J:' li;:, (ii) ••••••••••••••••• (2) .................. . (3) ................. . (4) .............. . (5) I I I I I ■■■ I I I I I I II (6) ............... . (7) Either party- ( a) to proceedings un9er P~.rt X of the Criminal Procedure . ,, 1.. ,. , Act may appeal to the Court of Appeal on a matter of law ( not including severity of sentence) but not on a matter of fact; (b) to proceedings of a criminal nature u'nder Head ( c) of Part III of the Magistrates' Courts Act, may; if the High Court 4 '.:1 ; L. ;.~.~ ·, f' • -· certifies that a point of law is involved, appeal to the Court of Appeal. As up until the time this appeal was called on for hearing no certificate had been issued under the-!rovisions of the law, the appeal is /~·•. n·~( .,_ . . .., . . )~ rendered incompetent. _ ~n the _circumstances we ~ttd J~th the two points of preliminary obJect1on raised and argued -up·on l:Jy Mr. Merinyo on behalf of the respondent. The appeal is found to' bfincompetent and it is accordingly struck out. DATED at ARUSHA this 21 st Day of February 2012. E.N.MUNUO I lUSTlCE ,., OF.~·,APPEAL .. ,' · 1 '. :...,- ' '1 1;>1 ... E. A. KILEO I JUSTICE OF. APPEAL I: I. Wi: 5,IMANDIA f.r ~:1 , ·,~ • JUSTICE ~F~,APPEAL I certify that this is a true copy of the original. 'I DEPUTY REGISTRAR \ \\ , COURT OF 1APPEAL .\ \. J ,. ,,,,.,. 1/' 5I 1~( #~~· -~-~ ·-~ -·-~ ----- .-- , 'I/;" ' ' . :,i~ ' .. . o .•