20090511 TZCA Mwanza

IN THl;<OURT OF APPEAL OF TANZANIA ATMWANZA {CORAM: NSEKELA, J;A.• KILEO. J.A .. And OTHMAN. J.A.) CRIMINAL APPEAL NO. 243 OF 2004 WAMBURA MNIKO BUNYIGE ............................................. APPELLANT VERSUS THE REPUBLIC ............................................................... RESPONDENT {Appeal from the Decision of the High Court of Tanzania at Mwanza) {Mchome, J.) dated the 28th day of July, 2004 in HC Criminal Appeal No. 160 of 2003 RULING OF THE COURT 11 May, 2009 NSEKELA, J.A.: When this appeal was called on for hearing this morning, Mr. Kakolaki, learned State Attorney, appearing for the respondent Republic, raised a preliminary objection on the competency of the notice of appeal filed on the 9.9.2004. The notice of preliminary objection contained two grounds, namely - "1. That the appeal is incompetent for being time- barred; 2. That the Notice of Appeal is defective for non- compliance of (sic) Form B of the Court of Appeal Rules, Cap. 141 RE, 2002." - 2 Elaborating on the first ground of complaint, the learned State Attorney submitted that the decision against which the notice of appeal was filed was delivered by the High Court on the 28.7.2004 in the presence of both the learned State Attorney and the appellant. However, the appellant lodged the notice of appeal on the 9.9.2004 contrary to rule 61 (1) of the Court of Appeal Rules, slightly over thirty days. As regards the second ground of complaint, Mr. Kakolaki submitted that the notice of appeal did not comply with Form B in the First Schedule to the Court of Appeal Rules in that it was not dated by the appellant. Mr. Kweka, learned advocate for the appellant, did not resist the grounds of complaint raised by the learned State Attorney. He lamented that he was instructed to represent the appellant on the 5.5.2009 and consequently did not have time to make appropriate applications to rectify the errors in the notice of . . -· -- .. . . ' ., . .... - ...... . appeal. There is no doubt at all that the notice of appeal offends Rule 61 (1) of the Court of Appeal Rules. A notice of appeal has to be lodged within fourteen days of the date of the decision being appealed against. As rightly conceded by Mr. Kweka, the notice of appeal was lodged out of time. We wish to add that the appellant has not lodged an application for extension of time to lodge the notice of appeal. 3 Under the circumstances, we have no option but to strike out the said notice of appeal. Since. a notice bf appeal institutes the appeal, the appeal before us is incompetent. Having reached this conclusion, it is not necessary for us to consider and determine the second ground of complaint. It is so ordered. DATED at MWANZA this 11 th day of May, 2009. H. R. NSEKELA · JUSTICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL M. C. OTHMAN JUSTICE OF APPEAL I certify that this is a true copy of the original. I J2 (P.A. YIMO) DEPUTY EGISTRAR