UWEZ ZIBWE

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS CRIMINAL APPLICATION NO. 000000596 OF 2025 UWEZI ZIBWE .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS OFFICE OF DIRECTOR OF PUBLIC PROSECUTION .............................. RESPONDENT / DEFENDANT RULING KAHYOZA, J The Applicant, Uwezo Zibwe has brought the present application under the provisions of section 361(1) and (2) of the Criminal Procedure Act, Cap. 20 R.E 2022. He is seeking for extension of time within which to lodge his notice of appeal and also appeal out of time. This measure is intended to enable the Applicant to appeal against the decision of the district court of Kasulu in criminal case No. 147 of 2021. Against this application, the Respondent Republic has raised two preliminary objections on points of law, namely; 1. That the application is bad and seriously unmaintainable under the law for being inoperative under res judicata creed. 2. That the affidavit supporting the purported application is incurably defective for violating the mandatory provisions of section 8 of the Notaries Public and Commissioners for Oaths Act, Cap.12 R. E 2019. On these grounds, the Respondent is urging the court to strike out the application for being incompetent. As regards the first point of the preliminary objection, it was submitted by Ms. Flora Lucas, learned state attorney that the present application is misconceived because the intended appeal was already heard by this court and it was determined to its finality. She elaborated that previously the Applicant Page. 1 Hon... PROJESTUS KAHYOZA had filed into this court DC Criminal Appeal No. 49 of 2021 and that after a full hearing the appeal was found wanting in merit and the same was dismissed by this very court on 01/04/2022. The learned counsel is of the view that given these circumstances, the Applicant is precluded from coming back to this court for determination of the same appeal. To support this contention, the learned state attorney referred the court to the decision of the Court of Appeal in Emmanuel Simforian Massawe vs The Attorney General (Civil Appeal 216 of 2019) [2022] TZCA 390 (17 June 2022), reported at Tanzlii. For this reason, the learned state attorney urged the court to strike out the application for being incompetent. On his part, the Applicant submitted that he was partly in agreement with the learned state attorney in that his appeal was once heard by this court. But according to him, this court directed that the record be remitted to the trial court for entering a conviction. He seems to suggest that once that was done by the trial court, it paved way for him to lodge the present application. He is thus of the view that the objection raised is baseless and the same should be overruled. I must say from the outset that this point need not detain me as the records are clear and straight. It is not in dispute that in 2021 the Applicant filed to this court DC criminal Appeal No. 49 of 2021. It is also on record that the appeal was heard by this court and a judgement was delivered on 01/04/2022. What I have gathered from the Applicant’s submissions is that the appeal was not determined to its finality. According to him, the record was remitted to the trial court for making a vital correction, and after that his appeal could be heard. With due respect to the Applicant, this is not a correct position at all. It is indeed a misconceived position. On this, the record speaks volumes. As rightly submitted by the learned state attorney, judgement in DC Criminal Appeal No.49 of 2021 was delivered on 01/04/2022. At pages 12 and 13 of the judgement we have the following: In the result I find that the charge of incest by males was proved by the prosecution beyond all reasonable doubts. I disagree with the submissions by the State Attorney that identification was not established. It was established as explained above. The appeal is dismissed. However, I found an anomaly in the judgment as there is no conviction entered. Having found that the offence was proved, just as the trial court did, I do hereby direct that the trial court's file be remitted to the trial court for it to enter the conviction in accordance with the law. For clarity, the trial court must, for keeping the record in order; record that it has "convicted" the accused, not only finding him guilty. The accused must be summoned and be present when conviction will be entered. Order accordingly. [Bold added for emphasis]. Page. 2 Hon... PROJESTUS KAHYOZA From the above excerpt, the following is discernible. One, that the Applicant’s appeal was dismissed by this court. Two, that there was an order for remitting the record to the trial court for compliance with the order made. What is important at this juncture, is the fact that the Appellant’s appeal was dismissed. As such, he cannot come back to this court for determination of the same appeal. It is for this reason I find merit in the first point of the preliminary objections, and I accordingly sustain it. As this suffices to dispose of the entire appeal, I shall not labour on the remaining point as doing so will be only superfluous. In the end result, I find the application incompetent, and the same is struck out for the reasons stated. I so order. Dated at KIGOMA this 3rd of March 2025 . P. R KAHYOZA JUDGE OF THE HIGH COURT Page. 3 Hon... PROJESTUS KAHYOZA