Republic vs Yombo s/o Buibobudo (Miscellaneous Criminal Application No. 17 of 1999) [1999] TZHC 433 (13 October 1999)

~ .· . ·i:',. . . 't,.; , ,; {<.:: . . ;J• ' -: ........ ..... _ .. j.: :.:,·:,1;<''.' !N THE HIGH COURT OF: ,',1tANZANIA . If . MI_SCELLANEOUS' :CIMINAL 1 APifICATION NO. 17/99 1N THE MATTER OF AN APPLIOATION FOR LEAVE TO nrn~~OTIE:oFPPEflt _OUTJoF.TIME TOT COURT OF AP=: : D TANZANi . IN THE MATTER OF MISC~ 'CRkmAL APPLICATION NO'• 91 OF 1996. . . I IN THE H1GH COURT OF TANZANIA AT MWANZA. YQMBO s/0 BUiiOBUDO •••••• ••••• J • ...... ~~;-..AWLICANT 'l'l!E REPUBLill •••••••~~~ ••••• l. .............. JlESPONDEJsT I RULINJ MROSO; J.,. _ J This is =-«P!llioat1.0ll for· , argement of time. for. the applicant . . l to file a. noticG of o.PJ}Gal.il:t too Court o:.e.Ai,peal_p_f Tanzanj,.a against. ' I -- I .. a ruling of this Court (Lugakingira, Judge, as he t'he~-w;,s) .. .r.b~ i ·. 2'>d Ju1y, 199?. In that ruling thl learned Judge dismissed an application by this same applioant for l0aTQ tlo file an appeal out of time against a decision of the-District Court l which the applfoant was. convicted for defilement of a girl under thel age of 14 years and was sentenced to imprisonment for 20 years. It seems to me tlrat in order for the applicant to 1;3ucceed in this application he has to surmo t two hurdles. First, he has to give convincing reasons for his dJlay to file a notice of appeal. Second, he has to convince the coirt that if he.is granted extension of time to file the notie of a-, thel"e wou1cl..b~· .a meritorious . appeal. The ruling of this Court in Misc. Criminal Application No.91 ,..: I .... . ; of 1996 which the applicant intenas to challenge in the Court of Appeal of Tanzania was given on ld July, 1997 in the· presence of 'J .i J i .. I 1

• 2 the applicant, the same day of hearing the application. The application now before me was filed in February 1999, more than one and half years after the ruling was handed down. The affidavit of the· applicant which he filed in support of the application does not offer any ex:plana.tion for the long delay of over two years. In paragraph 3 of his supporting affidavit the applicant claims that he learned of the ruling. of 2/7/9? on 2/9/9?. Even accepting that claim as true and correct, there is still need for explanation for the ].ong lapse of more t~ .seventeen--(1'7}. months before filing this application. But all he says in paragraph 5 of his aifidarlt in purported explanation is - v 9

5. That the delay to lodge a notice of appeal· on time'(s~c) was caused by reasons which were not of my- o,wn making and were beyond my control.u B\tt, witb.-speot, the applicant does not say what those reasons were. I must rule, therefor, that no _reasons at all, let alone · ' ~ sufficient reasons .have been,_gi..,.en. for the i.nordil:late. delay -in.-fil the present application. The applicant has failed to go over the first hurdle• As for the second hurdle 1 he would not cross it even if he had succeeded in the first one. The applicant had claimed before me that Mr. Justice Lugakingira did not give him any hearing at all before ruling that the application had no merit. The court record does not bear him out. The record shows that the judge heard both the applicant and the State Attorney, one Mr. Mwambegele,before proceeding to write a ruling. The appJ.,icant is recorded as telling the court - 11 ! did not get judgment copy in time"• Then, after the State Attorney addressed the court the applicant is again recorded as telling the court-

3 "I have nothing to add. Got the judgment out of timen. I do not doubt the faithfulness of that record. So, the applicant is being less than truthful when he says he was not given any hearing at all. At any rate, I have perused the evidence that was adduced and the judgment of the trial court and I agree with the judge · in his ruling that t_he appeal which the applicant wished to file in .the High Court did not stand any chance of success. The payment by the applicant of Shs.20 1 000/= as compensation for violating the young girl of 13 years corroborated her claim that she had been defiled by the applicant. This application has no merit and is dismissed. JUDGE 13/10/99• , Applicant present in person. r· .,· .· / , , Mr. Kabonde, SeA• present.