RAHIM SWAMBALI SHAHA VS THE REPUBLIC MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY

AT DAR ES SALAAM MISCELLANEOUS CRIMINAL APPLICATION NO. 1809 OF 2025 (Originating from the decision of the District Court of Mkuranga at Mkuranga before (Hon. H.I. Mwailolo – SRM) dated on the 24th day of August 2023 in Criminal Case 243 of 2023) RAHIM SWAMBALI @ SHAHA…………………………………….……… APPLICANT

VERSUS THE REPUBLIC………………………................................................RESPONDENT

RULING Date of last order: 12/02/2025 Date of ruling: 13/02/2025 A.A. MBAGWA J. This is an application for the extension of time within which to file an appeal against the decision of the District Court of Mkuranga hereinafter referred to as ‘the trial Court’. The applicant has moved this Court by way of chamber summons made under the provisions of Section 361(1) and (2) of the Criminal Procedure Act. The application is supported by an affidavit affirmed by the applicant, himself. 1 According to the affidavit, the applicant was charged, tried, and convicted of an unnatural offence contrary to section 154 of the Penal Code. As such, he was sentenced to life imprisonment. Aggrieved by both the verdict and sentence, the appellant lodged a notice of intention to appeal and later a petition of appeal to challenge his conviction and sentence. His appeal was admitted by this Court and subsequently transferred to the Court of the Resident Magistrate of Kibaha with Extended Jurisdiction before Hon. MKOI – SRM with Extended Jurisdiction. It was contended that before the appeal was heard on merits, the Court observed that the appellant’s appeal was wrongly numbered and for that reason, it was held to be incompetent before the Court. It is unfortunate that the applicant did not mention the number of the criminal appeal which was before Hon. Mkoi SRM nor did he attach the order of the RM’S

Court with extended jurisdiction. However, this Court, on its own, made a search in the electronic Case Management System (JoTeCMS) and found out that the said criminal appeal was registered as Criminal Appeal 2 No. 27 of 2027. Further, the record has it that the said criminal appeal was, on 10th October 2024, struck out/ removed from the system on account of being registered as Criminal Appeal No. 27 of 2027 instead of Criminal Appeal No. 27 of 2024. When the matter was called on in the Court on 12th February 2025, the applicant appeared in person whilst the respondent/Republic was represented by Mr. Charles Magai, the learned State Attorney. Mr. Magai told the Court that he was supporting the application. The applicant did not have additional submissions, rather he beseeched the Court to grant his prayers. Having gone through the application, it is common cause that the applicant promptly initiated the appeal against his conviction but the appeal was held to be incompetent due to registration formalities. Further, there is no gainsaying that the applicant was convicted of a serious offence and hence sentenced to life imprisonment. Admittedly, the obtaining circumstances and the gravity of the sentence call upon the Court to give the appellant a second chance, that is, to allow him 3 to challenge the decision of the trial Court in this Court. That, in my considered opinion, is

in consonance with the interest of justice. In the upshot, I am settled that the appellant has demonstrated sufficient grounds to warrant the extension of time. As such, I allow the application. The applicant is therefore given thirty (30) days from the date of this ruling to file a notice of intention to appeal and a petition of appeal. It is so ordered. The right of appeal is explained. Dated at Dar es Salaam this 13th day of February 2025. A.A. Mbagwa

JUDGE 13/02/2025 Court: The ruling has been delivered in the presence of the applicant in person and Ms. Gladness Mchami, learned Senior State Attorney for the 4 respondent Republic on this 13th day of February 2025. A.A. Mbagwa

JUDGE 13/02/2025 5