Benedict Kilembe vs The Republic (Criminal Application No. 1 of 2015) [2015] TZCA 939 (21 August 2015)

I ,,••":!,i~,;,,j' If•• ' IN TH~ COURT OF APPEAL OF TANZANIA ATMBEYA CRIMINAL APPLICATION N0.1 OF 2015 . . /., . BEN·E·DICT ·KI LEM BE ..... ~ .......... ~ .......... ■ -~. ■ - •••••••••• · •••••• ~~ ................... ; .•• APPLICANT . ~ ... · . . . . . . . VERSUS THE EP.BLIC ..... · ..... ;·. ~,/ .. ~ ................................. ..·....................... RESPONDENT · (Application for Extension of time within which to apply to revise the decision of the Court of Appeal of Tanzania· · A,t, Mbeya) (Nsekela,J,A., Msoffe,J,A., and Oriyo.J, A). dated the 26 th day of November, 2010 iri 21 st & 24 th .August,2015 · MUSSA, J.A.: Criminal Appeal No. 170 of 2009 RULING. ~~ Iri the· District court of Mbeya, the applicant was. convicted for an · unnatural offence contrary to section 154(1) of the Penal Code, chapter 16 · of the revised Laws. · Upgn -· conviction, /he . was sentenced . to life imprisonment. His first ppeal to· the High: CoUrt was dismissed. in its · entirety (Lukelewa, J.), jwst. as was. his second appeal to· this . court ' ·. . . . . : ·• . . _· ·(Nsekela, JA, Msoffe, J.A, and Oriya, J. A).- .· ·

The applicant's present quest is by Notice of Motion of which its relevant portion is couched as hereunder>- "NOTICE OF MOTION (Under Rule 10, 47 and 48(1) and(2) of the court of Appeal Rules of 2009) TAKE NOTICE THAT on the ... day of ... 2015 at ... O'clock in the morning/afternoon or soon thereafter as he can be heard the above applicant will move the court/a judge of the court for an order that this honourable court be pleased to extend the time within which the applicant to lodge revision out of time on the ground that my application which I lodged to this honourable court are incompetent .. " The Notice of motion is accompanied by an affidavit, duly sworn by · the applicant, into which he replicates his prayer in paragraph 3 follows:- ''3. That I am the applicant in this applicant (sic) applying for the extension of time to lodge an applicant for revision out of time. " Thus, it is beyond question that the applicant presently seeks to move the court to extend time so as to enable him mount revisional proceedings as against the decision of this court dismissing his appeal. As it turns out, the applicant has appended the decision at the foot of his Notice of Motion. 2

At the hearing before me, the applicant was fending for himself, unrepresented, whereas the respondent Republic had the services of Ms. Catherine Paul, learned State Attorney. As it were, the applicant fully adopted the Notice of Motion as well as its accompanying affidavit. · For her part, Ms. Paul did not mince her words to express, from the very outset, that the application is misconceived much as the same eventually seeks to move the Court to do what it cannot: That is, to revise its own decision. Thus, the learned State Attorney urged that to the extent that the Court does not have jurisdiction to revise its own decision, this application cannot be entertained. To this submission, the appellant was berefit of any rejoinder except for the plea asking the court to sympathize with him. Addressing the rival positions and, as already remarked, the applicant clearly seeks enlargement of time within which to mount revisional proceedings as against the court's own previous decision. I cannot conceive the application to be otherwise such as a quest for review, the more so, as the applicant clearly expresses his desire· 11 Extension of time to 3

.. , "\ ~ I 1 ,f . l lodge an application for revision out of time'~ To that extent and, in agreement with the learned state Attorney, the application is ·misconceived and is hereby, accordingly, struck out. - DATED at MBEYA this 21 st day of August, 2015. K;M.MUSSA JUSTICE OFAPPEAL I certify that this is a true copy of the original. ~JKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 4