19780411 TZHC Dar es Salaam

. . . .. " \ IN THE HIGH COURT OF TANZJi.Nli AT DAR -I~S SALA!i.M APPELLJ~TE JURISDICTION . HIGH COURT CRIMINAL APPE1\L NO. 71 /7f ORIGINAL CRIMINAL CASE NO. 1 02 OF 1 975 OF THE DISTRICT COURT OF DLR ES SALAAM AT IITVUKDNI Before: J.M. Nyanboga - District Magistrate JUD.GM E N-T 4 PATEL, J. Before the District Court of D2.r es SaL.."1.an. at Kivukoni the respondent was charged with 'Stealing by ser-- :c...., • vant' c/ s 271 :!!ln.d 265 of the Pen..'11 Code on two counts and Wf'~s acquitted on both counts by the trial mag;strc..te. Being nggri- ved by this order the Republic ms appealed to this court. On the day fixed for hearing of this appeal Mr. Kesarin for the respondent took the preliminary point s~ying this appe- al is barred by virtue of Section 335 (b) of Criminal Procedure Code. He Sc:1.id under• the said section the following provisions have to be complied with •. (a) Notice of appeal to be given within 30 d2.ys of judgment. (b) Appeal tlllot be filed w·ithin 45 dnys fron date of judgment. (c) Period for obtaining copy of judgment to be excluded. He said these provisions were not observed and the appeal • was filed out of time though with the consent of the Hic'h Co-µrt the appea couJd have been admitted out of tine on showing good cause. He said no such application was ne.de in court seeking leave to file appeal out of time and ~s such present appeal is not competent and should be dismieed. "· •••• 2 •.•••• In support of his ·subnission he refe:r:Ted to the following authorities: (1) R. V/s Kassun H.c. Digest 1970 Case No. 334. Page 320. ( 2) Jamal Mc.9.mj i & Co • - V/ s •- R. H. C. Digest 1 970 Case No. 338 Page 323. In reply learned stnte attorney so.id he fUlly agreed . - that provisions of Section 335 ·of Criminal Procedure Code must be ~omplied with but there were proctical difficulties about complying with them. He concedGd there was negligence in his chnnbers but in spite of that this nppeo.l should be adnitted. The record reveals _that though notive of intention to appeal was given in tirae, appenl itself was filed 120 days after date of judgnent and.is hopelessly out of t.il~c. It was open to the Republic to file an application to this court seeking leave to file appeal out of time such o..pplic2.t.ion duly supported by an affidavit showing a good cause ~s to why it wns not filed within the prescribed t~ne. It w~s not so done. Learned State Attorney conceded thn.t there were practical difficulties which IJ.ade it impossible to conply with the provisions of section 335 of Crirainal Procedure Code and said there was negligence in A. G's chc'lm.ber. It ·certainly was. How- ever facts are facts and it is cleo.r toot provisions of section 335 of Crirtlnal Procedure Code hn.ve not been conplied with • ••.• 3/ For these reasons this appeal is dismissed. ( J. B. PATEL) JUDGE 11/4/76 . Deiivered in court this 19th day of April, 1978 in presence of Mr. Shinganyo. for Appeil.lant and Mr. Ke&.'1.ria for Respondent. I : ( J. B-. PATEL) JUDGE 1 9/4/78