20180905 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA i IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA I t MISC.CRIM APPLICATION NO .. 75 OF 2017 (Original Criminal Appeal No 120/2016 of the High Court of I United Republic of Tanzania) I . I THE REPUBLIC ............................................................. APPLICANT I VERSUS ANAEL N. PALLANGYO .......'.................................... RESPONDENT RULING DR. OPIYO, J The applicant filed a chamber summons under section 383(3) of the Criminal Procedure Act, Cap 20 R.E 2002. The applicant is seeking for the following orders:- I 1. That, this honourable court be pleased: to order re-admission of Criminal appeal No 120 of 2016 and continue to hear it on merit and ' deliver the judgment therefrom. I I I 2. Any other order(s) as this'. honourable court may deem fit to grant. I This application is supported qy affidavit of Amina Kiango, learned State I Attorney and Beatrice Muumba, Record Management officer, High of I Tanzania, District Registry of Arusha. Before me, the applicant/Republic was represented by Ms. Amina Kiango, learned State Attorney while 1 respondent was represented by Mr. Hubert Lubyama learned advocate. The application was disposed of by the way of written submission, in her written submission it was Ms. Kiango submission that, on 14th December, 2016 they filed their petition of appeal in the High Court registry, the same was admitted as criminal appeal no 120/2016 and the same was scheduled for hearing on the 9th day of August, 2017 before Hon. Opiyo, J. It was her submission that on that morning she came early where she found Hon. Opiyo, J conducting a court session for settlement, she communicated with Beatrice Muumba( Record Managerrnent Officer) of ~he High court, District Registry of Arusha, informing her that she was going to attend the Court of Appeal Session so that when criminal appeal no 120/2016 shall be due for hearing she would notify her. It was her further submission that, before the Court of Appeal session was over and before she was notified by Ms. Beatrice she decided to go to Hon. Opiyo, J chamber to see the progress only to find that, their criminal appeal 120/2016 has already been dismissed for want of prosecution. It was her further submission that, her non-appearance was no actuated by I malice or willfully negligence. It was her prayer that this court re-admits the said Criminal Appeal No 120/2016 and continues to hear it on merit.. Opposing the application, respondent submitted that, the applicant did not advance any sufficient reason for this court to grant the prayer sought in the chamber summons, because when the case was called for hearing by the trial judge the court sought to know from Ms. Beatrice whether the 2 case had been scheduled for later in the day, but she replied it was called on the right time. Had she been informed by Ms. Kiango, she could have not forgotten to call her. It was his further submission that, it is clear that the prosecution on the said date had no intention or desire to prosecute their case. It was his prayer that the application be dismissed. I This is application is for re-admission of an appeal No 120/2016 which was dismissed by this court for want of prosecution, as the appellant/Republic did not appear for the hearing. The question for consideration in this application is therefore whether the applicant has shown. to the satisfaction of this court, that there was sufficient- cause for their non-appearance at the hearing on the 09th August, 2017. The applicant has alleged that they were present in court on the said dat~ and they found the trial judge in mediation session, the opted to attend ;Court of Appeal session at the next building and they requested the court derk(Ms Beatrice Muumba) that they should be notified when the session is over, but unfortunately the court ' clerk forgot to inform them and the case was dismissed for want of prosecution. The applicant was able to obtain the affidayit of the said court clerk to support their allegation, in which in her affidavit she stated clearly that the applicant were present in the morning when the appeal was scheduled for hearing and requested her to notify them when the trial judge is done with the mediation session, but she forgot to do so. 3 . I I Since the applicant allegation has ,been substantiated by MsMuumba's affidavit in which she deponed to have forgotten Ms. Kiango's request to notify her when the said appeal is called before the Judge for hearing, it is my view, the applicant has managed to show good cause for non- appearance at the hearing of their appeal, and this application is therefore ' granted. Appeal NO 120/2016 is re admitted in court. I I ' i (SGD) DR. M.OPIYO, ' JUDGE 24/08/2018 i I hereby certify this to be a true copy of the original. ., . TO 41-:L S.M. KULITA / ·c, '7 \ DEPUTY REGISTRAR :·,.,.. z; ·= ' ... / ~/ ARUSHA J OS/61 / ~ l ' f 1 41