Kafuba Mwangilindi vs Republic (Criminal Application No.3 of 2013) [2014] TZCA 2295 (28 July 2014)

.. '" .. . .. · .. · .. . . ~ ' ' ••• :' .• ~ ,>• . CRlMINAL APPllCATlON NO.3 Of 2013 . . .-:~~ .. - "'· ; ·'-. ; ·: ., , ·. ' ·, ·l_ •. ,- KAFUBA MWANGILIN DI ••..••.•.•••.•••..•....•.•....•.•..•.••••.• :· .••...•.••••.•.•... APPLICANT VERSUS THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RES PON DENT (Application for extension of time to file an application for Review out of time from the judgment of the Court of Appeal at Mwanza) cJi (Kimaro, JA., Luanda, JA. and Mandia, JA.) «"- u dated the 13 th day of October, 2010 chv ~ ✓ v'0 .· : in tl1 '~- D 9,,μJ/ Criminal Appeal No.187 of 2006 ~- Q ,j (LJ-ss RULING ~ °"4-VL c~~ 25 th July & 4 th August, 2014 ' ~, L ~ C'.. KIMARO, J.A.: ~/L ~ l"._C!A... Before the Court is a notice of motion filed by the applicant under Rule 10 of- the Court of Appeal Rules 2009 for extension of time to file an application for review of the judgment of the Court in Criminal Appeal No.187 of 2006. The application is supported by the affidavit of the applicant and ~hat of SP.M. 0. LWAMBA the Superintendent of the Butima Prison which were filed in Court on 8 th March 2013. The ·main reason given to support his application was that: 1

:?;t:tf 1?t:lif11ltritjiif ~f jtf itji{lf?iit11:r . '" . =·; har;' n·drrlttM§f?j}y¾n& OO}hg dmr!hirteci ·such .. ~ ~~ ·- :(77/SCarrfage OfJuSf/ce-'1,soLght {oriln ·ass,iti3hoe rttom ·'- . ~ counsels who would tepres~nt me by way of legal drawing and appearance in eourt at tf}e state expenses due to reasoning that I was Jeopardized as from the serious charge of murder, and all efforts for representation ended by hitting a snag, and thus led to the expiry of time of lodging an application for review in the court of appeal. Hence this instant application. " The applicant deposed in paragraph 2 of his affidavit that he was aggrieved by the decision of the Court and there is an apparent error on the face of the record that resulted in a miscarriage of justice which for interest of justice needs a review. The affidavit of the Prison Officer on the other hand deposed that all that is contained in the affidavit of the applicant is true and that his office has no hand in causing the delay in filing the application. Ms Bibiana Kileo, State Attorney filed an affidavit in reply. She deposed in her affidavit in reply that the applicant has not furnished sufficient reason for being granted the application. She deposed in paragraph 3 that "THAT, that contents of paragraph 3 of the Applicant's 2

contention that tbe applicant delayed to file an application for review in time because he was seeking for counsels to represent him have neither any proof whatsoever nor substance. Even the affidavit of the Prison Officer is as well baseless as he has only stated that the omission to file an affidavit in time was not attributed to the Applicant nor was it done by his office of Butimba Prison fulfilling its obligation according to the laid down procedure of the law. " When the application was called on for hearing the applicant appeared in person. He was not represented. The respondent /Republic was represented by Ms Bibiana Kileo learned State Attorney. Contrary to what is deposed in the affidavit of the applicant that he is a moslem, the applicant informed the Court that he is a Christian and that his Christian name is Sylvester. As the Court required him to say why he did not give a true information about his religious belief in his affidavit, he said that he gave that information to the Prison Officer but the Prison officer did . not put that in his affidavit. On the strength of what is deposed in paragraph 3 of his affidavit, the appli_cant prayed that the application be granted. 3 t

• for. ·There is no documentary evidence whatsoever to show that the delay is attributed to seeking assistance to have legal representation as no document was filed by the applicant to support his assertion. Responding to the failure by the applicant to genuinely indicate his religious belief, that he is a Christian and not a Moslem, the learned State Attorney prayed that the application be dismissed because failure by the applicant to disclose one's religious belief makes the application defective for the applicant telling lies. The judgment of the Court which the applicant is seeking for extension of time to have it reviewed is dated 11 th October, 2010. Rule 48 of the Court of Appeal Rules provides for a procedure for filing an application in the Court. It must be filed by way of a notice of motion. Rule 49 (1) requires the notice of motion- to be supported by one or more affidavits of persons having knowledge of the facts. • I ;:., r Oxford Advanced Learner's Dictionary defines an affidavit as follows: "a written statement that you swear is true; and that can be used as evidence in a court of law. " 4

.·. ·•.,,-; -"":- .•Sir::2 t:-ie_ac.oj,ic:zr.t...r\as.c.eosed_in his affidavit.that he:ls a·rnos;e(·ccf ·;· ·' ··:· ---' .. {:" }·.' ;;.~:·z ('~~~{:>=='-:· ·:- - . r:.:-:::!'!-::t::1-: ~~. =t !:. i;_ ..t,_., f;-c=-:-ri~:: . j- ;. j.>·"·, -,?--1s;"A-+:'7/>; /'r'·.;. . informed the Cowrt in-hi,s oral submission in support of -his applic2tio~ that he is a Christian this renders the whole affidavit to be untrue. In.such a situation the notice of motion is defective for not being supported by an affidavit. Consequently, the application is struck out for not being incompetent. DATED at MWANZA this 28tn day of July, 2014. N. P. KIMARO JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ F. J. KABWE DEPUTY REGISTRAR COURT OF APPEAL 5