19850410 TZHC Dar es Salaam

.· _._ ..,i· -·-•-::i . ;;..,.,- .~;· . . ,;'. ;:-··.,.~-- ..,. ,/' IN THE HIGH COURT OF TANZANIA AT DARES SALAAM MISCELLANEOUS CRIMINJ.\.L A.2P NOo 8/85 IN THE MATTER OF AN APPLICATION FOR LEAVE OUT OF TIME AND IN THE MA'fTER OF CRIMINAL CASE NO. 261 OF 1982 IN THE DISTRICT COURT OF ILALA DISTRICT AT KISUTU REGINA VS. RICHARD S/0 Yo MGAYA MAINA 1 J. RULING: This is an application for le-,ve .to appeal out of time. The applicant Richard Y. Mgaya was charged in the district court with several counts of obtaining money by false pretences.. After three witnesses had given evidence, the prosecution hewing failed to get the remaining prosecution witnesses on the date fixed· for confirmation of the trial, applied for leave to -~~f thdraw the charge under section 86 ( al of the Criminal Procedure Codeo The application was resisted by the defence which askedthat the prosecution withdraw the charge under section 200 or 205 of the Criminal Procedure Code. The Court overrul'3d i the defence ant! granted the prosecution leave to withdraw the charge under section 86 (a) of the Criminal Procedure Code. The Court's order was made on 11 June, 1984. There was no appeal made against the magistrate's order until 5th March, 1985, almost nine months after th~~ Order was made 1 when this application was filed. ; ~hen the order discharging the applicant under section 86 (a) of the Criminal Procedure Code was made by the district Court, both the applicant and his advocate were present in court. . Incidentally I the advocate who represented the applicant in this application is the same one who had represP.nted the applicant in the lower court. The reasons given for the long delay in filing the appeal is that the applicant_)i-;)/ ,,::, ~/ ., • • •·_•/~o -2- had been assured by the prosecution that no fresh proceedings would be preferred against him for the same offence; and that whenever the applicant demands return of his properties held by the Police, . the explanation given for not ret·.1rning to him those properties is that it is intended to charge him afresh. Let me point out at the outset that under section 314,of the Criminal Procedure Code, a person aggrieved by a dAcision of the ·di.strict court must file a notice of intention to appeal to thP. High Co.urt within ten days from the date of the judgement or order., The appeal mus_t be filed within forty five days. The High Court may only extend the 0 h0ve periods of limitation fn,,. good cause showno . Nqw, can it be said tha·t the applicant has shown good cause in this case'? All that the applicant says is that he is being threatened I l;>Y the prosecution that fresh proceedings may be brought against him., 1$ut that is precisely the effect of the Order of discharge· made under section 86 (a) of the Criminal Procedure Code. Mr. ·Lukwaro, learned counsel who appeared for the applicant in the lower court and in·this cou:rt, was present when the order was made. If the applic,mt was· disa·~isfied with that order an appeal should have been filed promptly within the prescribed periodo Sicce no appeal was lodged, .the pro~ecution has a right to charge the applicant afresh for the same Offe.~ce 0 ·The delay in filing the appeal within the prescribed period is unjustified because a"s I have pointed out, the order discharging the .. ·' applicant under section !:<6 (a) of the Criminal Procedure Cocte did not Operate as a bar to subsequent proceedinqs on the ,same offenceo By. saying that the applicant may be charged afresh, the prosecution is repeating what is contained in section 86 (a) of the Criminal Procedure Code under which the applicant was discharged. The discharge was made before the applicant entered his defence and so the prosecution may at any time charge ~im for.the same offence. The delay in filing the appeal within the prescribed period is not for any good cause and I find no reason to extend the perioct of limitation prescribed by law •. As for merits in the intended appeal, I cannot say that there are overwhelming chances of successo 111A trial magistrate exercised hi3 •••oe/J .. '1/ / .',' t -t;".\ ~.;,1 -3- discretion in granting the application after witnessAs failed to turn up on the date for the contindation of the trial. I cannot say that he exercised his discretion wrongly. It is for these r~asons that the application is dismissed •. \~"~ W. Jo MAINA JlJPGE.; DAR ES SALAAM 10.April, 1985. Mr. Lukwaro, Counsel for the applicant Mro Rutashobya, State Attorney, for the Respodent.