Mohamed Swed vs Republic (Criminal Application No. 33/02 of 2024) [2024] TZCA 1018 (1 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CRIMINAL APPLICATION NO. 33/02 OF 2024 MOHAMED SW ED........................................................ . ................. APPLICANT VERSUS THE REPUBLIC............................................... .......................... RESPONDENT (Application to lodge Appeal out of time in the High Court of Tanzania at Manyara) (Barthy,_J.) Dated the 23rd day of August, 2023 in Criminal Application No. 21 of 2023 RULING 28th October & 1st November, 2024 MURUKE. J.A.: Mohamed Swed, the applicant was arraigned before the District Court of Babati at Babati charged with one count of rape contrary to section 130 (1), (2) (a) and 131 (1) of the Penal Code. It was alleged before the trial court that on 28th April 2021 at Hengoni area, within Babati District, the applicant had sexual inter cause with the victim, name withheld, without her consent. After full trial, the applicant was convicted and sentenced to thirty years imprisonment. The applicant intended to appeal against decision of the District I Court, but was out of time. He thus preferred application at the High Court for extension of time within which to appeal.

After hearing of the application, High Court Honourable Barthy, J on 23rd , August 2023, dismissed the application for extension of time to file appeal at the High Court for failure by the applicant to adduce sufficient cause for the court to exercise its discretion. Being dissatisfied with Ruling of the High Court, the applicant intended to challenge the same but did not do it timely. He has thus filed present application moving the Court to extend time within which to file appeal. Application is accompanied by applicant own affidavit and that of Mr. Nahman Waziri Koko, Prisoner Officer Incharge of Babati District Prison. Upon being served, the respondent apart from filing affidavit in reply, also raised notice of the Preliminary Objection containing one ground, namely. "The application is incompetent and bad in law for contraveningprisons o fRule (47) o f the Tanzania Court o fAppeal Rules, 2009." On the hearing date, the Respondent Republic was represented by Ms. Blandina Henry Msawa, learned Senior State Attorney, whereas, the applicant was in person not represented. It was Ms. Msawa who stated the ball running by submitting on the preliminary objection that, the applicant ought to have filed appeal to the Court of Appeal, and not application for extension of time as the case here.

With that brief submission, Ms. Msawa pressed for the application to be struck out. When asked by the Court to read the provision of rule 47 she alleged to have been contravened and relate to the notice of motion seeking extension of time to file appeal, after reading, respondent counsel simply replied that the applicant ought to have filed appeal and not application for extension of time to file appeal before the Court. In response, the applicant, being a layperson submitted that, he has delayed to file the appeal he is requesting for extension of time so that he can file the appeal to challenge ruling of the High Court refusing him extension of time. Having heard both parties brief submission, I wish to preface my determination of preliminary objection at the outset with the provision of rule 47 of the Tanzania Court of Appeal Rules, 2009, complained to have been contravened. Same read as follows, "Wheneverapplication is to be made either to the Court or to the High Court, it shall in the first instance be made to the High Court or tribunal as the case maybe, but in any criminal matter the Court may in its discretion, on application or o f its own motion give leave to appeal or extend the time for the doing o f any act, notwithstanding the fact that no application has been made to the High Court". Rule 47 above, put clearly that, Court of Appeal, and High Court have concurrent jurisdiction to grant extension of time. However, the applicant has

to start first with the High Court, once refused then he/she has right to file application as a second bite. Mohamed Swed after being refused by the High Court extension of time to file appeal challenging decision of the trial court, ought to have been appealed to the Court of Appeal, after filing Notice of Appeal to the High Court In the cause of hearing, I asked the applicant, who appeared in person without representation if at all he filed any application at the High Court for extension of time to file appeal to challenge decision of the High Court and denied. He could however not show from the affidavit when, if any, such an application was filed and refused. He only showed the decision of the High Court refusing extension of time to appeal against the decision of the District Court. I have gone throw the notice of motion and the affidavits in support thereof and satisfied myself that, the applicant has not, before filing this application, attempted a first bite application to the High Court. I understand the jurisdiction of the Court to entertain an application for extension of time in the circumstances of this case, is conditional upon there being a decision of the High Court refusing to grant the same. Present application was not preceded by a first bite application to the High Court, obviously application has been preferred prematurely. Thus, preliminary objection filed and argued by Ms. Msawa, learned Senior State

Attorney for the Respondent Republic is upheld. With no hesitation application for extension of time is prematurely filed, therefore, I strike it out. DATED at ARUSHA this 1s t day of November, 2024. Z. G. MURUKE JUSTICE OF APPEA The Ruling delivered this 1s t day of November, 2024 in the presence of the applicant in person and in the presence of Ms. Mary Lucas, Principal Senior State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.