20130308 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA MZA. CRIMINAL APPLICATION NO. 1 OF 2011 OTIENO OBUTE ................................................................... APPLICANT

VERSUS THE REPUBLIC .................................. 1 ••••••••••••••••••••••••••••••• RESPONDENT (Application for extension of time to file notice and petition of appeal out of time from the order of the High Court of Tanzania at Mwanza) (Nyanqarika, J.) dated the 6 th day of September, 2010 in Misc. Criminal Application No. 37 of 2010

RULING 8 & 8 March, 2013 BWANA, l.A.: When this application came up for hearing, Mr. Victor Karumuna, learned State Attorney for the respondent Republic, abandoned the Notice of Preliminary Objection filed earlier. We were left, therefore, with the substantive application wherein the applicant, Otieno Obute, seeks leave of this Court to file both his notice of appeal and memorandum of appeal to the High Court, out of time. According to the applicant, he gave to the prison authorities at Musoma, his notice of intention to appeal on the very day he was admitted into· prison. That was on the 3 January 2008. On the following day the same was reduced in writing and he signed it by thumb print on 6 January 2008. Then the documents were duly handed over to the said prison authorities for onward transmission to the High Court Registry at Mwanza, thus complying with the provisions of section 263 of the Criminal . Procedure Act. Being a prisoner, he could not do much thereafter, he avers. Mr. Karumuna's main point of contention is that since the applicant's averments are not supported by an affidavit by the prison superintendent, they should be disregarded by this Court. The delay is of his own making and the application be dismissed. I have considered the averments by both parties and come to the conclusion that this application has merit, the flaws raised by Mr. Karumuna,

notwithstanding. As a prisoner, his rights and responsibilities are restricted. Therefore he did what he could do. 2 He may have been let down by reasons beyond his means. Failure to ! secure the prison superintendent's affidavit is therefore, not fatal to this application, given the circumstances described hereinabqve. Accordingly, the application is granted. The applicant, Otieno Obute, is given further time to file I his notice of appeal to the High Court. The same be filed within thirty (30) days from the date of delivery of this Ruling. That should be followed by filing of the I memorandum of appeal within twenty one (21) days from the date of I filing the notice of appeal. It is so ordered. DATED at MWANZA this 8th day of March, 2013. S. J. BWANA

JUSTICE OF APPEAL !_certify that this is a true copy of the original. --p- . . --Pr---. ' I I \.) ?· ;_~:MPIKYA

SENIOR DEPUTY REGISTRAR ' ..( ' '·· ---.., . COURT OF APPEAL _d, '-·· ~--•· . .,, ----~-· , ' 3