20100719 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA. CRIMINAL APPLICATION NO.102 OF 2007 (ORIGINATING FROM C/F MBULU D/C AT MBULU CRIMINAL APPEAL NO.60 OF 2006 "MARIA LEONCE ...................................•..............'a••····APPELLANT

VERSUS 1. GWANDU TLEMU.

2. THOMAS AWAKI 3. PIUS MADAWE ............................... .: .................. RESPONDENTS .I 31.05.2010 & 19.07.2010

RULING Shayo,J. This is an application by the applicant, one Maria Leonce, for extension of time within which to file her appeal against the decision of Mbulu District Court in criminal Appeal No.60/2006. it has been brought under the provisions of section 25(1)(a) of the Magistrate's Courts Act, Cap. 11 R.E.

2002. The same is by way of Chamber summons supported by the Affidavi,t of Maria Leonce, the applicant, in which she states that she was unable to lodge her appeal in time because she could not be supplied with copy of judgment on appeal from the District Court of Mbulu, despite that she had requested for the1 same on 6.01.2007, only to be suppl8ed on 30.11.2007. Further that her appeal has overwhelming chances to succeed especially when taking into consideration the fact that despite her evidence to prove the offence of robbery which evidence was supported by witnesses the trial Primary Court ruied that the respondents had no case to ' answer. And finally that after the appellate pistrict Court had prepared the judgment, no notice was ever sent to him to collect the same from that court. ... - On the other hand, the respondents namely, Gwandu Tlemu, Thomas Awaki and Pius Madame, in their joint Counter Affidavit countered vehemently that the application is time barred for the simple reason that the copy of judgment was supplied on 12.06.2007 but the application was then filed 6 months later that is on 13.12.2007. In deed this application is devoid of any ·merit. The copy of judgment that was supplied to applicant clearly indicates tha~ the date of judgment was on 13.12.2006, the date copy was applied for was on 13.12.2006, the date the copy was ready and duly certified was on

16.04.2007 and the date the same was supplied was on 12.06.2007. For all purposes of intent, the allegation by the applicant that she was unable to lodge her appeal in time because she could not be availed of copy of judgment in time doesn't ;hold water. The right of action accrued on the date the judgment was ready for collection, that is on 16.04.2007. There is no doubt whatsoever that the applicant negligently failed to make a follow up of the judgment after she had requested for the same. She has no room to shift the blame to the District court that it did not notify her to collect the copy of judgment when it was ready. With respect, it was and it is not the duty of the court to do so in whatever circumstance. It follows therefore that it is not a sufficient reason or cause to. justify granting of leave to file her appeal out of time. Even assuming that, that is a sufficient reason by the applicant, her other ground or reason in support of her application that her appeal has all chances to I succeed, equally has no leg to stand : on. The evidence of the complainant/applicant (SMl) and her witness! (SM2) before the trial Primary Court against the accused/respondent who was facing a charge or robbery with violence c/s 285 and 286 of the Penal Code could not establish a strong case for the accuseds to answer. The trial court was not satisfied that the evidence

of identification by SMl and SM2 was adequately watertight to at all establish the charge against the respondents (accuseds), whereof it ruled that there was no 2 I' case to answer against the accused persons anp acquitted them. Although the complainant (SMl) and SM2 had testified to hav& identified the accused persons at the scene of crime by help of moonlight, the~ could not give a description of I the respondents, say, special features or marks that enabled them to identify the accuseds/respondents that night. That being the position there is no likely hood that the intended appeal 1 i: will have any chances to succeed. The applicamt's application for extension of time to lodge her appeal is therefore refused and is accordingly dismissed. It is so ordered. A.A. M. Shayo Judge 09.07.2010 I I 1: Delivered in Chambers at Arusha this 19th July, 2010. A.A.M. Shayo Judge 19.07.2010 For: Applicant - present , ,;;;: -~~oAdents: - (1) Gwandu Tlem (2) Thomas Awaki. All present (3) Pius Madawe I ! I is to be a true copy~of Original I! . ~ DISTRIC ¥fR I, ARUSHA. i! I! l'" ! 3