masumbuko madata matata sumbu vs republic 2023 tzhc 16780 31 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ATTABORA MISC.CRIMINAL APPLICATION NO.5 OF 2023 (Originating from the High Court of Tanzania at Tabora (L.K. N KADURI, J) dated 31st May, 2011 in Criminal Session Case No. 23/2009. Original Murder Case No. 45/2008 of the District Court of Ka ha ma) MASUMBUKO S/O MADATA @ MATATA SUMBU............. APPLICANT

VERSUS

THE REPUBLIC RESPONDENT

RULING Date: 27/3/2023 & 31/3/2023 BAHATI SALEMAJ.: The applicant MASUMBUKO S/O MADATA made this application under section 11(1) of the Appellate Jurisdiction Act, Cap. 141 [R.E 2019] to this court seeking the orders of this court on the following prayers: - 1. The application for leave to give notice of appeal to the Court of Appeal of Tanzania be granted 2. The court extends the time within which to give notice of appeal to the Court of Appeal of Tanzania, and/or 3. Any other relief the Court be pleased to grant. 1 The application has been brought under section 11(1) of the Appellate Jurisdiction Act, Cap. 141 [R.E 2019] and it is supported by an affidavit of Masumbuko Madata. It is deposed in paragraphs 4,5, 6,7,8,9,10,11,12,13,14,15 and 16 of the affidavit in support of the application that, the applicant was arraigned before the High Court of Tanzania at Tabora sitting at Kahama, jointly and together with CHARLES -X S/O KARAMJI @ CHARLES MASANGWA and MEDARD S/O MAZIKU @ MACHUNDA for the offence of murder in Criminal Session Cases No. 23 & 24 of 2009 where they were found guilty in all cases, consequently 'A convicted and sentenced to suffer death by hanging. J Owing to the nature of sentence imposed upon they were relocated to Butimba Central Prison in Mwanza and later to Uyui Central Prison at Tabora for appeal purposes. ; He was relocated to Isanga Central prison at

Dodoma for treatment while behind him, the other two namely CHARLES S/O KARAMJI @ CHARLES MASANGWA and MEDARD S/O MAZIKU @ MACHUNDA initiated the •A appeal process where they lodged before the Court of Appeal, Criminal Appeal No. 34 of 2016. While at Isanga Central Prison he found himself behind time so he applied to the High Court of Tanzania at Tabora vide Misc. Criminal Application No. 166/2017 which he withdraw for some technicalities. ,t .Y He lodged a fresh application for an extension of time to give the notice of appeal to the court of appeal in Misc. Criminal Application No. 53/2019 which was granted on 21/10/2019 [Amour S. Khamis, J dated 21/10/2019]. On 23/10/2019 he lodged the notice of appeal to the court of Appeal. While he was awaiting the record of appeal, CHARLES S/O KARAMJI @ CHARLES MASANGWA and MEDARD S/O MAZIKU @ MACHUNDA were summoned before the Court of Appeal at Tabora to prosecute Criminal I Appeal No. 34/2016 which on 02/12/2019 the Court of Appeal nullified the proceedings in Criminal Session Case No. 23/2009, set aside the sentence and ordered for a retrial de novo. The decision in Criminal Appeal No. 34/2016 brought for him a whole new development which called for a change in the course of action in lay of the fact that the proceedings of the case which he was part of were I nullified in the appeal which he was not part to. He was advised by the

Deputy Registrar of the High Court of Tanzania at A’ Tabora to withdraw the notice of appeal he lodged to the Court of Appeal which he immediately heeded with the view that when Criminal Session 3. .5 Case No. 23/2009 will be called for a retrial, he will be party he as he.* previously was. 'i. I At the time of withdrawal of the notice of appeal both he and the Deputy Registrar of the High Court (T) atTaboraa didn't know what the Republic had in mind regarding Criminal Session Case No. 23/2009 for 16/07/2021, they showed no interest to continue with the case, they prayed to withdraw the charge and asked the High Court to release CHARLES S/O KARAMJI @ CHARLES MASANGWA and MEDARD S/O MAZIKU @ MACHUNDA on a Nolle Prosequi. The Republic asserted that they could not entertain a nolle prosequi in respect of him because he was not a party in Criminal Appeal No, 34/2016 before the Court of Appeal, the sentiments which were subscribed by the Deputy Registrar of the High Court of (T) at Tabora. The state of affairs alluded to in paragraph 12 of this affidavit left him • *■> ignorant of his fate in Criminal Session Case No. 23/2009 because as A things stand, he was counted as a convict in a case whose proceedings V have been nullified by the Court of Appeal of Tanzania. He wrote to the Judge In-Charge of the High Court of Tanzania at Tabora trying to seek an administrative solution to

this stalemate. The Hon. Judge In-Charge replied that he should prepare extension of time to V lodge a notice of appeal to the Court of Appeal so that the court of A Appeal will see how to resolve the matter. The sworn this affidavit in good faith hoping that this Court will find that the delay is not attributed to his inactivity or sleeping over his right, rather, find that he had adduced sufficient cause for the delay. He prays this court to grant the application and extend the time sought so that he can give the notice of appeal to the Court of Appeal so that this matter can be brought to finality as advised by the Judge In-Charge of the High Court of Tanzania at Tabora. z When the matter was called on for hearing, the applicant was unrepresented while Mr. Robert Kumwembe, learned State Attorney for the Republic. The applicant prayed to this court to adopt his affidavit to form an integral part of his submissions. In reply, Mr. Kumwembe supported the application. Now, the issue before this court is whether the application has merit. The Appellate Jurisdiction under Section ll-(l) provides that; ''Subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the V T' I 5 subordinate

court concerned, for making an application for leave to appeal or for a certificate that the case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired." Having painstakingly perused the affidavit of the applicant and concession from the learned State Attorney, it is my observation that the✓ applicant has shown sufficient cause for the extension of time and it is hereby granted. The applicant is to give notice and file an appeal. Order accordingly. A. BAHATI SALEMA

JUDGE 31/3/2023 Court: Ruling delivered in presence of Applicant and Mr. Joseph Makene learned State Attorney. W41 A. BAHATI SALEMA

JUDGE 31/3/2023 Right of Appeal fully explained. A. BAHATI SALEMA

JUDGE 31/3/2023 6