Shabani Ally v. Republic, Cr app no 14 of 2006 (fraudulent false accounting)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CRIMINAL APPLICATION  NO. 14 OF 2006

SHABAN ALLY………………………………………………...APPLICANT

VERSUS

THE REPUBLIC ………………………..…………………RESPONDENT

       (Application for leave)

From Decision of the High Court of Tanzania at

Dar es Salaam

(Oriyo, J)

Dated the 30^th May, 2005

in

Criminal Appeal No.39 of 2004

…………………………….

10^th & 13^th November, 2006

R U L I N G

KAJI, J, A.

      By a notice of motion made under Rule 61 of the Court of Appeal Rules, 1979, the applicant, Shaban Ally, is moving the Court to extend time within which to file a notice of appeal.

        The applicant was charged in Morogoro District Court with 35 counts of fraudulent false accounting, contrary to section 317(b) of the Penal Code Cap.16, and 35 counts of stealing by person in public service, contrary to section 270 and 265 of the Penal Code.  He was convicted accordingly.

He was sentenced to 2 years imprisonment on each count of fraudulent false accounting, and 6 years on each count of stealing by person in Public Service.  Sentences were ordered to run concurrently.

He unsuccessfully appealed to the first appellate Court where the sentence on the fraudulent false accounting was enhanced to 4 years imprisonment on each count.  He was aggrieved with the whole decision of the first appellate Court.  But he was late to lodge his notice of appeal within 14 days as required by Rule 61 of the Court of Appeal Rules, 1979.  Hence this application.

 Ordinarily he ought to have first lodged this application in the High Court under Rule 44 of the Court of Appeal Rules, 1979.  But being notified by the applicant that he will complete serving his sentences on 12/1/2008 unless otherwise, the Court exercised its discretion under the same provision to hear the application by itself.

        The grounds for delay are contained in paragraphs 4,5 and 6 of the applicants affidavit accompanying the notice of motion.

They are  as follows:-

4.   That, I expressed my intention to appeal to the Court of    Appeal through prison authority Ukonga after reading the High Court order;

5.   That, I am a prisoner under custody.  Therefore I am not in control of the procedure and submission of the notice of appeal.

6.   That, on making decision for this application, I pray to the Court of Appeal to consider the provisions of section (sic) 68 of the Tanzania Court of  Appeal Rules, 1979 that a prisoner is protected on such failure of late submission.

In his oral submission he recapitulated the same.

        Mrs. Kabisa, learned State Attorney, who represented the respondent Republic at the hearing of the application, did not object the application.

        On my part I would have been happier if I saw an affidavit from Ukonga prison authority that the applicant had really indicated his intention to appeal immediately after the judgment of the High Court was read over and explained to him.  There was none.   But the applicant was quick to explain that his application was forwarded by the prison authority itself, and that if they did not agree with what he had deponed there, they would have refused to let it go.  In the circumstances of this case, I think, the explanation cannot be said to be unreasonable.  That being the case, I hold that the applicant expressed his intention to  appeal immediately after the judgment was read over and explained to him, and that the delay was probably caused by the Ukonga Prison authority, a fact which was beyond his control.  This, in my view, amounts to sufficient ground for extension of time.

        In the event, and for the reason stated, I extend time within which the applicant to file a notice of appeal.  He is to do so within 14 days from the date of delivery of this ruling.

        DATED at DAR ES SALAAM this 13^th day of November, 2006.

S.N. KAJI

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

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