20150319 TZCA Mwanza

:. ;:, i \r ,l \:: I I \ I IN THE COURT OF APPEAL OF TANZANIA ATMWANZA {CORAM: MBAROUK, J. A., ORiVO, J. A., And MMILLA, l. A.) CRIMINAL APPLICATION NO. 02 OF 2006 1. WEREMA s/o WANGOKO VVEREMA } 2. WAISIRI WANGOKO WEREMA .................. APPLICANTS ·VERSUS . THE REPUBLIC ......................................................... RESPONDENT {Application for Review from the decision of the Court of Appeal of Tanzania at Mwanza) (Munuo. Msoffe And Kaji, lll.A.) Dated the 1 st day of March, 2006 In Criminal Appeal. No. 67 of 2003 .' ..•......•...••... . RULING OF THE COURT ' 19th & 20th March, 2015. ' MBAROUK, J.A.: Earlier on when the applicatio·r was called on for hearing, Mr. Castuce Ndamugoba, learned State Attorney for the respondent/Republic prayed to withdraw his notice of preliminary objection which he filed on_ 16-3-2015 for the reason 1 that the applicants were not served with it. He urged us to invoke Rule 4 (2) (a) of the Court of Appeal Rules, 2009 (the Rules) and mark the notice of preliminary objection withdrawn. The applicants had no objection to that prayer and we accordingly marked it withdrawn. Having marked the notice of preliminary objection withdrawn, we proceeded to the substantive application which just on the face of it, the application seems to have been filed out of time. This application was lodged by the applicants each one of whom filed separate notice of motion seeking the order of this Court to review its own decision in Criminal Appeal No. 67 of 2003 dated 1st March, 2006. The 1st Applicant lodged his notice of motion on 20th September, 2006, whereas the 2nd Applicant lodged his notice of motion on 21 st September, 2006. That 2 \t I prompted the Court to raise suo motu the issue whether the application has been filed. out of time. This is because this application for review was filed seven months after the delivery of the decision subject of the review. It has to be noted that this application was filed during the era of the Court of Appeal Rules, 1979 (old Rules). Rule 66 (3) of the Rules has specifically stated the time upon which the applicant in a Review application is supposed to file his application, that is sixty (60) days from the date when the decision subject of review was delivered. During the era of the Old Rules, this Court was mainly guided by case law on the issue of time upon which an application for Review had to be filed. See the decision of this Court in the case of Halais Pro-Chemie Vs. Wella AG [1996] TLR 269, Charles Barnabas Vs. Republic, 1: Criminal Application No. 11 of 2007, Benson Kibaso Nyakonda 3 @ Olembe Patroba Apiyo Vs. Republic, Criminal Application No. 6 of 1999 (Both unreported). In the instant application, both applicants readily conceded to the anomaly pointed out by the Court earlier. However, they prayed for the Court to use its wisdom so that they can correct their mistake. On his part, the learned State Attorney joined hands with the point raised by the Court that, the application has been filed out of time. Hence, he prayed for the Court to strike it out. As pointed out earlier, this application has been filed out of time. But, as far as the same was filed before coming into force of the current Court of Appeal Rules, we are obliged to find the application incompetent relying on the authorities of the cases cited herein earlier in this ruling. 4 . .,. . '' ' Hence, for the reason of being out of time, we are constrained to find this application incompetent. For being incompetent, this application il struck out. It is so ordered. - DATED at MWANZA this 19th day of March, 2015. M.S.MBAROUK I JUSTICE OFAPPEAL K. K. ORIYO I . JUSTICE OF APPEAL 8. M. MMILLA I JUSTICE OF APPEAL I certify that this is a true lopy of the original. P.~ I SENIOR DEPUT:v REGISTRAR COURT OF APPEAL ' 5