Said Rashid Hassan vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (I RING A SUB REGISTRY)

AT IRINGA MISC. CRIMINAL APPLICATION NO. 19993 OF 2024 (Original Criminal Case No. 9406 of2024 of the District Court Of Mufind! at Mafinga before Hon. B.B. Nkomoia, SRM) SAID RASHID HASSAN.,...... ................... ,............... ............ APPLICANT

VERSUS THE REPUBLIC ................... ............... ,....... RESPONDENT

RULING Ofri August and ^ September, 2024 D.B. NDUNGURU, J: This is a ruling on a preliminary objection raised by the respondent that the court has been improperly moved. The applicant filed this application under section 361(2) and 392A of the Criminal Procedure Act [Cap. 20 KE 2002] seeking for an order of extension of time to file an application for revision against the decision of the District Court of Mufindi at Mafinga in Criminal Case No. 9406/2024. In the hearing of the preliminary objection, Mr. Raymond Byombalirwa, advocate appeared for the applicant whereas Yahaya Misango, State Attorney appeared for the respondent. In supporting the objection, Mr. Misango submitted that the applicant made his application under section 361(2) and 392A of the CPA. He Page 1 ofS submitted further that the section 361(2) of the CPA only deals with extension of time to file appeal from subordinate courts to the High Court and not Revision. He argued that relevant provisions for Revision is found under Part X(B) of the CPA specifically section 372. In his view, this court can not grant the prayers sought as the provisions cited do not vest the court with such powers. To support his view, he cited the case of Leonard Magesa vs. M/s Oiam (T) Ltd, Civil Appeal No. 117/2014 Court of Appeal - Mwanza (unreported). He urged the court to strike out the application for being incompetent. In reply,

Mr. Raymond contended that the CPA has no specific provision providing for extension of time to file revision. He contended further that by virtue of section 43 of the Law of Limitation Act, [Cap. 89 R.E 2019], the act does not apply in Criminal Cases. Therefore, in his view, the correct provision is section 361(2) of the CPA which gives this court power to extend time. He argued further that extension of time is under the discretion of the court upon the applicant showing sufficient cause. In his opinion, as long as what is sought is within the jurisdiction of the court, the non-citation is not fatal. He urged the court to invoke Article 107(2)(e) of the Constitution and do away with technicalities. He Page 2 of S distinguished the Leonard Magesa case cited by the respondent as that case was decided in 2015 before introduction of the overriding objective. He, thus, prayed the court to overrule the objection as being devoid of merits. In rejoinder, Mr. Misango reiterated that section 372 of the CPA is the correct provision for this application as Revision is not an alternative to appeal. Citing proper provisions in his view is a matter of law, thus, Article 107 cannot rescue the situation. I have considered the application at hand, the preliminary objection and the parties' submissions. The main issue is whether the court has been properly moved. The application at hand is made

under section 361(2) and 392A of the Criminal Procedure Act. Section 361 provides: "361. -(1) Subject to subsection (2), an appeal from any finding, sentence or order referred to in section 359 shall not be entertained unless the appellant- (a) has given notice of his intention to appeal within ten days from the date of the finding, sentence or order or, in the case of a sentence of corporal punishment only, within three days of the date of such sentence; and Page 3 of 5 (b) has lodged his petition of appeal within forty five days from the date of the finding, sentence or order, save that in computing the period of forty five days the time required for obtaining a copy of the proceedings, judgment or order appealed against shall be excluded. (2) The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed. Section 392A provides 392A.-(1) Every application under this Act shall be made before a court either orally or in written form. (2) An application made in written form shall be by way of a chamber summons supported by affidavit. I agree with the learned State Attorney that section 361(2) does not provide for matters related to Revisions. It only provides for appeals to High Court originating from subordinate. However, in the case of Registered Trustees of Baraza Kuu la Jumuiya ya Waislamu Tanzania vs.

Registered Trustees of the National Muslim Council of Tanzania (BAKWATA), Civil Application No. 480/08 of 2024, Court of Appeal - Dodoma (unreported) it was held: Page 4 of 5 "It is, I think settled position of law held by the Court in many cases without citing any, that wrong citation of an enabling provision or non-citation is not fatal if the court is clothed with powers to grant the relief sought". In the present application, the applicant seeks extension of time to file his Revision against the decision in Criminal Case No. 9406/2024 of the District Court of Mufindi at Mafinga. This Court is vested with power under section 372 of the CPA to revise decision from the District Court. In the event, I find the preliminary objection without merit. I overrule without costs. It is so ordered. D.B. NDUNGURU

JUDGE 9/9/2024 Page 5 of 5