SHARIFU RAJABU MFINANGA VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI DC CRIMINAL APPEAL NO. 15333 OF 2024 (Originating from Criminal Case No. 144 of 2023 of Moshi District Court at Moshi) SHARIFU RAJABU MFINANGA…………………………. APPELLANT VERSUS REPUBLIC ………………………………………….......... RESPONDENT RULING 21/10/2024 & 20/11/2024 SIMFUKWE, J. The appellant, Sharifu Rajabu Mfinanga was arraigned before the District Court of Moshi (trial court) charged on two counts: Rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E 2022. Second, unnatural offence contrary to section 154(1)(a) and (2) of the Penal Code (supra). It was alleged before the trial court that on 24th of January 2023, at Kilototoni area within Moshi District in 1 Kilimanjaro Region, the appellant raped a 75 years old woman and had carnal knowledge of her against the order of nature. After a full trial, the trial court convicted and sentenced the appellant to thirty years' imprisonment on both counts. The sentences were ordered to run concurrently. Aggrieved by the decision of the trial court, the appellant filed the present appeal, raising six grounds of appeal. However, before the appeal could be heard on merit, the respondent raised a preliminary objection on point of law to the effect that: The appeal is hopelessly time barred for being filed out of the prescribed time. At the hearing of the preliminary objection, the appellant was unrepresented, while the respondent was represented by Ms. Amina D. Mkayala, learned State Attorney. Supporting the preliminary objection, Ms. Amina submitted that the appellant was convicted on 25th of October 2023. That, the notice of intention to appeal was lodged on the 19th of January 2024, and the copy of the proceedings and the certified copy of the impugned judgment was ready for collection on that date. However, the appellant lodged the petition of appeal on the 5th day of June 2024, after the lapse of 139 days, 2 instead of lodging the same within 45 days prescribed under section 361(1)(b) of the Criminal Procedure Act (supra). Elaborating on the requirements of the law under the cited provision, the learned State Attorney argued that the appeal process from the subordinate court begins with filing a notice of intention to appeal within 10 days of the decision sought to be impugned as per paragraph (1) of subsection (1). The petition of appeal must then be lodged within 45 days from the date of impugned judgment. Ms. Amina explained that the proviso to the cited section states that in computing the 45 days, the time used to obtain copy of the proceedings, judgment, or order to be appealed against should be excluded. In the present case, the learned State Attorney noted that while the notice of appeal was filed within the prescribed time, the petition of appeal was lodged out of time. Furthermore, she asserted that there was no record of an application for extension of time to file the appeal. To support her submission, Ms. Amina cited the case of Chamba s/o Ndangamila vs Republic, Criminal Appeal No. 458 of 2007 (unreported). The learned State Attorney stressed that the Petition of Appeal was lodged 139 days after the judgment date. 3 In conclusion, the learned State Attorney prayed that the appeal be struck out. In response, the appellant contended that the Notice of Appeal was filed within the prescribed time. He explained that the court furnished him with copies of judgment and proceedings on 19th of January. Subsequently, he prepared the Petition of Appeal and handed over it to the Prison Officer. However, the Prison Officer informed him that the Judiciary of Tanzania had introduced electronic case management system (ECMS), whereby all matters had to be registered online. The appellant continued to elaborate that while the efforts were being done to register the appeal, they encountered system errors. Despite continuous efforts by the Prison Officials, including consultations with the Deputy Registrar, the appeal could not be registered. It was until 05th of June 2024, after the ECMS became stable, that the appeal was successfully registered as Criminal Appeal No. 15333 of 2024. Despite admitting that the appeal was filed out of time, the appellant argued that he was neither responsible nor liable for the delay. He prayed the preliminary objection to be overruled and the court to proceed with the hearing of the appeal on merits. 4 Having considered the rival submissions, the issue for determination before this court is whether the preliminary objection has merit. It is undisputed fact that the appeal before this court was filed beyond the prescribed 45 days’ time limit. This is because the impugned decision was delivered on 25th October 2023, while the instant appeal was lodged on 05th June 2024, which is beyond the prescribed time of 45 days provided under section 361(1)(b) of the Criminal Procedure Act (supra). The appellant did not dispute that the appeal was filed out of the prescribed time. However, the appellant adduced reasons for the delay. He explained that there were errors in the Judiciary's Electronic Case Management System (ECMS), which prevented him from filing the appeal on time. I agree with the appellant that the advanced reason for the delay is reasonable. However, I am of considered opinion that such explanation is misplaced. The appellant was required to file an application for extension of time after noting that he was out of time. In the said application he could have stated the reason for the delay. It is a well-established principle of law that once a time limitation is established, it prevents the court from entertaining the matter. This principle was emphasized in the case of ALAF Limited vs The Board of 5 Trustees of the Public Service Social Security Fund (PSSSF) & Another (Civil Application No. 529/01 of 2023) [2023] TZCA 17456 (26 July 2023) in which the Court of Appeal held that: “It is a trite law that once the issue of time limitation is established, it has the effect of causing the jurisdiction of the Court to cease.” In the instant matter, given the fact that the appeal was filed beyond the prescribed time, the jurisdiction of this court to entertain the appeal ceases. The court cannot act out of sympathy for the appellant. In the case of John Cornel v A. Grevo (T) Limited, Civil Case No. 70 of 1998, (HC) at Dar es salaam Registry it was held that: “... the law of limitation is on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get caught by its web." From the foregoing, it is evident that the appeal was filed out of the prescribed time, thereby ousting the jurisdiction of this court. Consequently, this court sustains the preliminary objection and hereby strike out the appeal forthwith. It is so ordered. 6 Dated and delivered at Moshi this 20th day of November 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 20/11/2024 7