MSAFIRI MORIS NYAKUTWI v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 19523 OF 2024 REFERENCE NO.202407152000019523 MSAFIRI MORIS @NYAKUTWI……………………………………..….…. APPELLANT VERSUS THE REPUBLIC…………………………………..……………………………RESPONDENT RULING OF THE COURT 20/08/2024 & 20/08/2024 Kafanabo, J.: The Appellant herein appeals against the decision of the Resident Magistrate’s Court of Musoma at Musoma (Hon. E.R. Marley, PRM) in respect of Criminal Case No. 87 of 2023 dated 30th November 2023. Briefly, the Appellant herein was arraigned in the Resident Magistrate’s Court of Musoma and was prosecuted and convicted of the offence of incest contrary to section 158(1)(a) of the Penal Code, Cap. 16 R.E. 2022. It followed that the Appellant was sentenced to penal servitude of thirty (30) years. The Appellant was dissatisfied with the said decision, however, he could not file his appeal timely as per the law. Being constrained by time limitation, the Appellant vide Miscellaneous Criminal Application No. 14457 of 2024 applied for an extension of time within which to prefer an appeal to this court out of the prescribed time. On 1 10th June 2024, the application was heard and determined in favour of the Appellant; and the Appellant was given thirty (30) days from 10th June 2024 within which to file his appeal. The Appellant, purportedly, acting under the directive of the said ruling filed this appeal on 15th July 2024. When the appeal was called for hearing today the Appellant entered an appearance in person and the Respondent was represented by Mr. Felix Mshama, Ms. Damari Nyange, and Ms. Natujwa Bakari, State Attorneys. Before the matter could be heard on merit, Mr. Mshama, learned State Attorney, sought to address the court on a preliminary matter in respect of which leave was granted. Mr. Mshama submitted that when they were preparing for the hearing of the appeal they noted that the appeal before the court had been filed out of time. The court was further addressed that the Appellant was granted an extension of time of thirty (30) days within which to appeal from 10/06/2024. However, as per the record, this appeal was filed on 15/07/2024, and counting from 10/06/2024 the thirty days expired on 09/07/2024. This means that the appeal was filed out of time and thus this court has no jurisdiction to hear and determine the same. It was further prayed that the appeal be struck out for being time-barred. Responding to the learned State Attorney’s submissions, the Appellant submitted that he is a prisoner and thus depended on others to act on his behalf. The lawyer who was assisting him confirmed to him that the appeal was lodged in compliance with the order of the court. He thus prayed the 2 court to help him because he indicated his intention to appeal timely; and, therefore, the court be pleased to accept his appeal. Having heard the parties on the matter, it is high time for this court to determine the point of law raised by the Respondent. In determining whether the Appeal is time-barred the following matters which are not in dispute, as gathered from the record of the court and which have been demonstrated by the parties’ submissions, are crucial to be laid bare: 1. The decision of the Resident Magistrate’s Court of Musoma which the Appellant seeks to challenge was pronounced on 30th November 2023. 2. The Appellant was supposed to file his appeal within forty-five (45) days from the date of the said decision but failed to do so. See section 361(1)(b) of the Criminal Procedure Act, Cap. 20. R.E. 2022. 3. The Appellant, being aware that he was out of time, filed an application for extension of time which was duly heard by this court and its decision was delivered on 10th June 2024, extending the time within which to appeal for thirty (30) days from 10th June 2024. 4. The said thirty (30) days granted by this court expired on 10th July 2024. 5. The Appellant submitted his appeal in the eCase Management System on 15th July 2024 and was admitted on the same date. 3 Therefore, in light of the above facts, it is as clear as sunshine that the appeal before this court was filed well after the expiry of thirty days granted by the Court in an application for an extension of time. This, undoubtedly, means that the present appeal is time-barred. The court takes cognizance of the fact that the Appellant is a prisoner, but its hands are tied and letters of the law must be observed. The next crucial question is what is the consequence of a time-barred appeal before the court. If this appeal had been civil, then the answer would have been the dismissal of the same under section 3 of the Law of Limitation Act, Cap. 89. R.E. 2019. However, the said law does not apply to criminal proceedings as provided for under section 43(a) of the said Act. Nonetheless, in criminal proceedings, if the appeal is time barred, the guidance has been provided by the Court of Appeal in a plethora of authorities; and for the frugality of time, this court will refer to a few for perspicuity. In the case of Ramadhani Rajabu @ Kules vs Republic (Criminal Appeal 553 of 2021) [2023] TZCA 150 (28 March 2023) it was held that: “In this regard, we are settled in our mind that, it was wrong for the High Court Judge to dismiss the appeal which was not heard on merit for being out of time. In that situation, the best option was to strike it out which would have enabled the appellant to come back subject to time limitation.” Moreover, the case of Yahya Khamis vs Hamida Haji Idd & Others (Civil Appeal No. 225 of 2018) [2019] TZCA 116 (16 May 2019) is relevant 4 in the present case as it discussed at length what it entails by striking out the matter before the court, and the difference between striking out the appeal and dismissing the same whilst referring with approval its decisions in the cases of Juma Nhandi v. Republic, Criminal Appeal No. 289 of 2012 (unreported), Emmanuel Luoga v. Republic, Criminal Appeal No. 281 of 2013 (unreported) and the decision of the erstwhile Court of Appeal for East Africa in the case of Ngoni - Matengo Co- operative Marketing Union Ltd v. Ali Mohamed Osman [1959] E.A. 577. The Court also held that: 'We have cited aii these authorities so as to emphasize that ordinariiy, the remedy of a matter which is incompetent before the Court is to be struck out. The reason for striking it out is that such matter is abortive or rather is incapabie of being heard oreven to be adjourned. In other words, it carries the impiication that there is no matter at aii before the Court." In light of the foregoing authorities of the Court of Appeal, and since this court has already ruled that the present appeal is time-barred, the unavoidable conseguence of the present appeal is to strike it out. Unhesitatingly, this appeal is struck out for being time-barred. It is so or peal explained. . Kafanabo Judge 20/08/2024 5 The ruling was delivered today in the presence of Mr. Felix Mshama, Ms. Damari Nyange, and Ms. Natujwa Bakari, State Attorneys, representing the Republic, and in the presence of the Appellant. K. I. Kafanabo Judge 20/08/2024 6