MOHAMED MAHAMUD pdf

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 18616 OF 2024 (Originating from Criminal case No. 59/2022 in the District Court of Simanjiro at Orkesumet.) MOHAMED MAHAMUDU........................................................ APPELANT VERSUS REPUBLIC........................................................................... RESPONDENT RULING 11th & 21st Nov, 2024 MWIHAMBI, J.: In the District Court of Simanjiro at Orkesumet, on 21st March, 2023, the appellant, Mohamed Mahamudu, was convicted for the offence of trafficking in narcotic drugs and subsequently sentenced to serve a term of thirty (30) years imprisonment. It was alleged that on 21st April, 2022 he was found illegally dealing and unlawfully possessing 66 kete of narcotic drugs named heroin, weighing 3.80 grams. The appellant was aggrieved with the conviction and sentence hence he filed of this appeal on 6th July, 2024. The appeal is based on four grounds of appeal which are not relevant at the moment. Page 1 of 6 Before this Court, the appellant appeared in person, unrepresented, while Ms. Blandina Msawa, Senior State Attorney appeared for the respondent. At the opening of hearing, the learned State Attorney raised a preliminary objection on a point of law that the appeal is time barred contrary to section 361 (1) (b) of the Criminal Procedure Act [CAP. 20 R.E. 2022] (the CPA). This provision requires an appeal to be filed within forty-five days from the date of the finding, sentence or order. The learned State Attorney argued that the judgment which is the basis of this appeal was delivered on 21st March, 2023 and the appellant received copy of judgment and proceedings on 22nd April, 2024, therefore even in applying the principle of excluding days that the appellant was waiting for copy of judgment and proceedings the appeal will still be out of time. That in these circumstances the appellant was supposed to apply for extension of time but records do not show that he did that. The learned State Attorney summed up with a prayer that the appeal be dismissed as the defect goes to the root of the matter. The appellant briefly replied that after the sentence he was taken to a prison in Kiteto, and he used to visit admission office to ask for copy of judgment and proceedings, in vain. That on 23rd September, 2024 he was transferred to Babati prison and was informed that reason for the Page 2 of 6 transfer was to enable him to attend his appeal in the High Court. The appellant summed up by a statement that he is not aware of the 45 days limitation for appeal. Having considered the parties' submissions, the sole issue for my determination is whether the appeal is time barred. Simply put, section 361 (1) (b) of the Criminal Procedure Act [CAP. 20 R.E. 2022] (the CPA) answers the question as to when to lodge an appeal, it reads: "361.- (1) Subject to subsection (2), an appeal from any finding, sentence or order referred to in section 359 shall not be entertained unless the appellant- (a) has given notice of his intention to appeal within ten days from the date of the finding, sentence...; and (b) has lodged his petition of appeal within forty-five days from the date of the finding, sentence or order." In this appeal, as it has been introduced by the respondent's attorney, the relevant judgement was delivered on 21st March, 2023 and the appellant managed to meet the requirement of section 361 (1) (a) as the notice of intention to appeal was given on 24th March, 2023, just 2 days after the judgment. However, as the learned State Attorney said, the appellant received copy of judgment and proceedings on 22nd April, 2024 and therefore the appeal was supposed to be filed on or before 6th June, 2024 but it was filed on 6th July, 2024; a span of 74 days. That Page 3 of 6 being the case this appeal has been filed out of the prescribed time provided by the law. It is unfortunate that whoever assisted the appellant with drafting his petition of appeal, which has a part that contains all necessary dates, failed to see this. The appellant's argument that he used to " visit admission office to ask for copy ofjudgment and proceedings, in vaid' is immaterial at this stage. The only available avenue for the appellant is application for extension of time through section 361 (2) of the CPA which reads: "361.- (2) The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed." The learned State Attorney prayed for dismissal of the appeal, however the fact that section 361 (2) of the CPA gives room for extension of time to file an appeal, means legislators intended to avail an opportunity for prospective appellants, who fail to meet the timeframes, to submit their application so that the Court can determine whether to grant or deny the applied extension of time. This Court in the case of Ernest Nyodo vs. Republic, Criminal Appeal No. 37 of 2022 [2023] TZHC 16990 (28 April 2023) was of the view that an appeal filed out of time cannot be entertained for being incompetent. On the other hand, the Court of Appeal in Saidi Shaibu Mwigambo vs. Republic, Criminal Page 4 of 6 Appeal No. 420 of 2021 [2023] TZCA 148 (28 March 2023) at page 10 held that: " We agree with the learned State Attorney that all being equal the delaying filing of the petition of appeal has the effect of rendering this appeal incompetent. The Court was barred from entertaining an incompetent appeal, for it was good as none has been instituted in the first place. The Court could only make an order of striking it out instead of dismissing as it did." In the light of the above guidance by the Court of Appeal the best practice when the appeal is incompetent for being time barred is to strike it out and not to dismiss as the learned State Attorney prayed. After all said and done, the preliminary objection raised by the learned State Attorney is sustained. This Court finds that the appeal is time barred and it is accordingly struck out. Dated at Babati this 21st day of November, 2024. N.J. MWIHAMBI JUDGE 21.11.2024 Page 5 of 6 Court: Ruling delivered today in the presence of the Appellant Mohamed Mahamudu and Mr. Johnson Ndibalema, State Attorney for the respondent. B/C Miss Fatina R. Haymale (RMA) present. N.J. MWIHAMBI JUDGE 21.11.2024 Page 6 of 6