- (High Court Criminal Appeal No. 71 of 1977) [1978] TZHC 278 (19 April 1978)

-- IN THE HIGH COURT OF TANZANIA AT DAR ES SAL4. APPELLLTE JIJRI SDICTION HIGH COURT CR'ThIINAL APAL NO. 71 /' ORIGINAL CRIMINAL CASE NO. 102 OF 1975 OP TUE DISTRICT COURT OP DAR ES SALA.AN AT KIVUNI Before: J. N. Nyamboga - District Magistrate J U D.G ME N' PATEL, J. - Before the District Cort of Dar es SaLam at Kiv'ikoni the respondent was charged with 'Stealing by ser vant' c/s 271 dnd 265 of the Penal Code on two counts and was acquitted on both counts by the trial magistrate. Being aggri- ved by this order the Republic has appealed to this court. On the day fixed for heaing of this appeal Mr. Kesaria for the respondent took the preliminary point saying this appe- al is barred by virtue of Section 335 (b) of Criminal Procedure Code. He said under the said section thc following provisions have to be complied with.. Notice of appeal to be given within 30 days of judgment. Appeal must.be filed within 45 days from date of judgment. Period for obtaining copy of judgment to be excluded. He said these provisions were not observed and the appeal was filed out of time though with the consent of the Hi t r.h. Court the appea cou]d have been admitted out of time on showing good cause. He said no such application was made in court seeking leave to file appeal out of time and as such present appeal is not competent and should be dismieed. 00 . . 2/

•S4. •..•* In support of his submission he referred to the following authorities: R. V/s Kassun H.C. Digest 1970 Case No. 334. Page 320. Jamal Namji & Co. - V/s R. H. C. Digest 1970 Case No. 338 Page 323.. In reply learned state attorney said he fully agreed that provisions of Section 335 of Crimiral Procedure Code must be wouplied with but there were practical difficulties about complying with them. Ie conceded there was negligence in his chambers but in spite of that this appeal should be admitted. The record reveals that though notive of intention to appeal was given in time, appeal itself was filed 120 days after date of judgment and is hopelessly out of time. It was open to the Republic to file an application to this court seeking leave to file appeal out of time such application duly supported by an affidavit showing a good cause s to why it was not filed within the prescribed tine. It was not so done. Learned State Attorney conceded that there were practical difficulties which made it impossible to comply with the provisions of section 335 of Criminal Procedure Code and said there was negligence in A. G's charnber. It certainly was. How- ever facts are facts and it is clear that provis ions of section 335 of Criminal Procedure Code have not been complied with. . . . . 3/

• • . . ; . 3 S • •• ö For these reasons this appeal is dismissed. (J. B. PATEL) JUDGE 11/4/7 Delivered in court this 1 9th day of April, 1978 in presence of Mr. Shinganya for Appellant and Mr. Kesaria for Respondent.

• (J. B. PATEL) JUDGE 1 914178 H