Yusuph Simoni vs Republic (Criminal Application No. 7 of 2013) [2014] TZCA 2262 (27 November 2014)

IN THE COURT OF APPEAL OF TANZANIA ATMTWARA CRIMINAL APPLICATION NO. 7 OF 2013 YUSUPH SIMONI • •• ••••• ••• • •• • •• ••• • ••• ••• ••• •• •••• ••• •• • ••• •••••• •••• APPLICANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Application for Extension of time to file Review from the decision of the Court of Appeal of Tanzania at Mtwara) (Mbarouk, Massati, Bwana, JJJ.A). dated the 11 th day of October, 2010 in Criminal Appeal No. 240 of 2006 26 th & 2s th November, 2014 KAIJAGE J.A.: ...••..... RULING On 13/6/2013, this Court struck out the applicant's application for revie.w of this Court's judgment dated 11/10/2010 in .Criminal Appeal No. 240 of 2006. That application was struck out for having been filed in violation of rule 48(1) of the Court of Appeal Rules, 2009 (the Rules). The present application which is supported by the affidavit affirmed by the applicant himself has been brought under rule 10 of the Rules. It is for extension of time in which to file, out if time, the intended application for review of. the said Court's judgment. When the application was called on for hearing, the applicant who appeared in person, fending for himself, adopted his notice of motion 1 \

and the averments in the supportive affidavit and urged me to allow this application for extension of time. On the other hand, Mr. Ladislaus Komanya, learned State Attorney who represented the respondent Republic, submitted that this Court's powers for extension of time in which to file the application for review are exercisable where the applicant has shown either in the notice of motion or in. the supporting affidavit, the particular ground or grounds that he intends to rely on in presenting_ his intended application for review. The applicant having not shown any of such grounds prescribed under rule 66 (1) of the Rules, his application should be dismissed, he argued. Admittedly, the Court is strictly enjoined under rule 66(1) of the Rules, not to entertain an application for review except on the basis of the five grounds prescribed thereunder. Indeed, law is settled that an applicant who files an application under rule 10 of the Rules for extension of time in which to file an application for review should not only state, in his notice of motion or in the affidavit filed in support thereof, the grounds for delay, but should also show that his application is predicated upon one or more grounds of review listed under rule 66 2

(1) of the Rules. (See, for instance, MIRAJI SEIF V.R., Criminal Application No. 2 of 2009, FESTO JOHN KIMATI V.R., Criminal Application No. 11 of 2009 and GIBSON MADENGE V.R., Criminal Application No. 3 of 2012 (all unreported). A requirement for the intending applicants to show, in the notices of motion or in the supporting affidavits, one or more grounds of review prescribed under rule 66 (1) of the Rules has its rationale lucidly stated thus in GIBSON MADENGE V.R., (supra):- "The Court is strictly enjoined in Rule 66 {1) of the Rules, not to entertain an application for review except on the basis of the five grounds or conditions prescribed therein. It would be futile, in my opinion, to grant extension of time to apply for review when the court is not certain of whether th~ intended application would be based on those grounds, and all will not be a disguised attempt to re-open the appeal to suit the needs and convenience of the applicant... " [Emphasis supplied]. 3

In the present application, the applicant has n~t stated anywhere that he intends to canvass any of the grounds prescribed under rule 66(1) of the Rules. This being the position, I am in agreement with the learned State Attorney's submission that this application has no merit. It is accordingly hereby dismissed. • DATED at MTWARA this 2ih day of November, 2014. S.S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. P.~~A SENIOR DEPUTY REGISTRAR COURT OF APPEAL 4