mselemu kandili vs waziri thatbit 2019 tzhc 201 20 december 2019

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISCELLANEOUS APPLICATION NO 197 OF 2019 (Arising from the High Court of Tanzania at Dar es Salaam Misc. Criminal No. 2018 (Hon. J.L. Masabo, J), originating from Criminal Case No. 340 of 2016 in District Court of Kilosa) MSELEMU KANDILI......................................... APPLICANT VERSUS WAZIRI TH A B ITI........................................RESPONDENT RULING 16th December, 2019 & 20th December, 2019 KISANYA, J The applicant has file this application by way of Chamber Summons praying for leave to appeal to the Court of Appeal against the decision of the High Court of Tanzania (Masabo, J.) in Misc, Criminal Application No. 191 of 2018. According to the applicant’s affidavit in support of the application, on 28th August, 2018, this Court dismissed his application for extension of time to file an appeal originating from decision issued by District Court of i Kilosa in Criminal Case No. 340 of 2016. Dissatisfied with the ruling of this Court, the applicant intends to appeal to the Court of Appeal of Tanzania on the following ground stated in paragraph 5 of his Affidavit: “That, the trial court erred in law and fact by failing to take into consideration that the fact the applicant was not timely availed with a copy of judgement to enable him appeal in time hence his delay" At the hearing of the application, both the applicant and respondent appeared in person, unrepresented. The applicant confirmed to this Court that he intends to appeal to the Court of Appeal against the ruling issued by the High Court (Masabo, J.) where his application for extension of time file appeal out of time was dismissed. He urged me to grant the leave to appeal to the Court of Appeal on the grounds stated in the affidavit. On his part, the respondent objected the application on the ground that the applicant failed to appear when the application was called for hearing before Hon. Masabo, J. He therefore prayed that this application be dismissed with costs. Upon considering both parties’ submissions, I have noted that this application has been made under rule 44(1) (a) of the Court of Appeal Rules, 2009. It is settled law that this Court can entertain an application if it is properly moved with enabling provision of law. There are cases of the Court of Appeal which direct that application made under wrong citation or non-citation of enabling provision becomes incompetent. For instance, in the case of Hussein Mgonja vs The Trustees Tanzania Episcopal Conference, CAT, Arusha, Civil Revision No. 2 of 2002 (unreported), the Court of Appeal held as follows: “If a party cites the wrong provisions of the law the matter becomes incompetent as the Court will not have been properly moved. ” The applicant is therefore duty bound to ensure that relevant enabling provisions are cited in his Chamber Summons. The provisions of Rule 44(1 )(a) of the Court of Appeal, 2009 cited in- the instant application provides as follows: “Where an appeal lies with the leave o f the Court, application for leave shall be made in the manner prescribed by Rules 49 and 50.” Upon reading Rules 49 and 50 referred to in Rule 44(1) (a) of the Court of Appeal Rules, 2019 cited in the application, I have noted that they provide for matter related to formal applications before the Court of Appeal. In this regard, it is clear to me that Rule 44 (1) (a) of the Court of Appeal qaA®’ 12S&\ does not empower this Court to determine application for leave to appeal against ruling issued by High Court when determining application for extension of time to file appeal out of time. In the circumstance where the application at hand is made under provisions which do not empower this Court to entertain the matter, I have no alternative but to hold it is incompetent. For that reason, the application is hereby struck out for being incompetent before this Court. Costs are not granted because this is criminal case. It is so ordered. Dated at DAR ES SALAAM this 20th day of December, 2019. E. S. Kisanya JUDGE Ruling delivered this 20th day of December, 2019 in the presence of the Applicant and Respondent. Right of appeal in accordance with the law explained 4