Nassoro Mengi vs Republic (Criminal Application No. 28 of 2012) [2013] TZCA 2355 (31 October 2013)

• - I -r IN THE COURT OF APPEAL OF TANZANIA AT DARE S SALAAM CRIMINAL APPLICATION NO. 28 OF 2012 NAORO MEIIGI ............................................................................ APPPL.ICAIJT VERSUS THE REPUBLIC .............................................................................. RESPONDENT (Application for extension of time to file an application for review of the decision of the Court of Appeal of Tanzania at Dar es Salaam) (Lubuva, J.A, Kaji, LA., and Kalegeya, LA.) dated the 25th September, 2008 in Criminal Aeal No.49 of 2008 RULING V V V 28th October & 4th November, 2013 KIMARO, ).A.: The applicant, Nassoro Mengi was convicted in Criminal Case No. 293 of 2003 for the offence of armed robbery contrary to sections 285 and 286 of the Penal Code as amended by Act No. 27 of 1991. Aggrieved by the conviction and sentence, he lodged an appeal in the High Court and in this Court but he was not successful. His application to have the judgement of the Court be reviewed, was on 19th April, 2012 struck out for being filed out of time. However, the applicant was informed that he was at liberty to file a fresh application but subject to the law of limitation. 1

He has now filed this application seeking for extension of time to file a review out of time. His application is supported by his own affidavit. The grounds for filing the appflcation are as quoted hereunder: "That being discontented with the Judgment of the court of appeal, I dully lodged an application for Review which was registered as Criminal Application No. 12 of 2008 but due to citing wrong Provision of the court Rules the same was struck out on the 15 Apr11 2012 and I was given liberty to instate (sic) afresh if I so wish. The conclusion of both courts relayed (sic) simply a fabulous visual identification evidence and retracted caution statement which were too unsafe." The facts deposed in the affidavit explain about the charges he was charged with, the time of his conviction, the time he lodged an appeal in the High Court of Tanzania and in the Court of Appeal and how the appeals in the High Court and in this Court ended. The applicant lost both appeals. During the hearing of the application, the applicant appeared in person. He was not represented. The respondent Republic was represented by Ms. Honorina Munishi learned State Attorney. 2

In arguing the application, the applicant requested the Court to grant his application. His application for review was disposed of on 19th April, 2012. This application was filed on 6th September, 2012. That was after a period of more than four months. The (imitation period for filing the application is sixty days. When asked by the Court to show where in his application he has shown reasons for the delay in filing the application, he could not do so but stated orally that there was a delay in obtaining the order of the Court that struck out his application for review. The learned State Attorney on her part opposed the application. She said the applicant has failed to give reasons for being delayed in filing the application. She prayed to have the application dismissed. The application is filed under Rule 10 of the Court of Appeal, 2009. Under the said Rule, the requirement the applicant has to satisfy is to show the reason(s) which delayed him in filing the application in time. The reasons must be genuine to satisfy the Court to grant the application. In this application I agree with the learned State Attorney that the applicant has not given any reason which justifies the Court to grant the 3

application. As stated earlier, his notice of motion does not give any ground for granting the application. Rule 48 (1) of the Court of Appeal Rules is specific on the format for filing a notice of motion. It states that: "Subject to the provisions of sub-rule (3) and to any other rule allowing in formal application, every application, to the Court shall be by notice of motion supported by affidavit. It shall cite the specific rule under which it is brought and state the ground for the relief sought." (Emphasis added). The grounds the applicant gave for filing the application are shown above. The grounds do not state any reason why the application should be granted. All that the grounds say is that he lost an application for filing a review because of citing an irrelevant provision and that his conviction was based on insufficient prosecution evidence. Definitely these are not the grounds envisaged under Rule 10, the enabling provision for filing the application, to grant the prayer. The same omission was made by the applicant in his affidavit. None of facts deposed in the affidavit explains why the applicant was late in filing the application. I stated earlier that the applicant has only given the history of his cases. They were all 4

-s determined against him. Giving a history of the cases is not the same thing as giving reasons for delaying in filing the application. That explanation is unrelated to giving an account for delay in filing the application. The applicant has therefore failed to account for the delay in filing the application. Under the circumstances the Court has no option but to dismiss the application for failure to give sufficient cause for the delay in filing the application for extension of time to file an application for review. DATED at DAR ES SALAAM this 31st day of October, 2013. N. P. KIMARO JUSTICE OF APPEAL I certify that this is a true,copy of the original. COURT OF APPEAL 5 r