IN THE COURT OF APPEAL OF TANZANIA AT MWANZA LUBUVA, J.A., MROSO, J.A. AND RUTAKANGWA, J.A.) CRIMINAL APPLICATION NO.3 OF 2005

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1 jj (CORAM: IN THE COURT OF APPEAL OF TANZANIA AT MWANZA LUBUVA, J.A., MROSO, J.A. AND RUTAKANGWA, J.A.) CRIMINAL APPLICATION NO.3 OF 2005 (Application for Review from the Judgment/Decision of the Court of Appeal of Tanzania at Mwanza) (Lubuva, J.A., Mroso, J.A. and Kaji, J.A.) dated the 4 th day of August, 2004 In Criminal Appeal No. 56 of 2002 RULING OF THE COURT LUBUVA, J. A.: By notice of motion, the Court is moved to review its decision of in Criminal Appeal No. 56 of 2002.

2 2 Initially, Mr. Matata, learned counsel had been assigned to appear for the applicant. On , when the appeal was called on for hearing Mr. Matata appeared for the applicant and Mr. Bulashi, learned State Attorney, represented the respondent, Republic. However, at the commencement of hearing the application, Mr. Matata, indicated to the Court that he felt uncomfortable in representing the applicant in this matter. The reason, he said was that in his view the ground for seeking review in this application does not fall under any of the circumstances in which the Court can invoke its inherent powers for reviewing its decision. He further stated that the application if anything at all, is a disguised further appeal. Mr. Matata also informed the Court that he had discussed with the applicant on the legal position of this applicqtion. However, according to him, the applicant was adamant prepared to pursue the matter on his own. For this reason, he sought leave of the Court to withdraw from further conduct of the application on behalf of the applicant. Mr. Matata was accordingly discharged from further conduct of the application on behalf of the applicant.

3 3 Appearing in person, the applicant urged the Court to determine the application on the basis of the grounds set out in his affidavit in support of the notice of motion. However, he said he made it clear to the Court that it was not his intention to prefer a further appeal in this matter. According to him, his intention was to seek the Court's indulgence so that the sentence is reduced. After all, he said he has been in custody for the last 14 years and that he is sorry for what he did which he will never repeat. For his part, Mr. Bulashi, learned State Attorney, for the respcrdent Republic, submitted that the application had been filed out of time. In elaboration, he said the decision of the Court which is sought to be reviewed was delivered on and the application for review was lodged on This is well over 60 days within which applications such as this are to be lodged, Mr. Bulashi further submitted. In support of this submission the State Attorney relied on the decision of the Court in Benson Kibaso Olembe Patroba Apiyo v. Republic, Criminal Application No. 6 of 1999 (unreported).

4 On the other hand, Mr. Bulashi also submitted that even if the Court decides to proceed with hearing of the application, there is no merit in it. He explained that it is now settled that the Court can invoke its inherent powers to review its judgment in certain categories of circumstances. In this case, Mr. Bulashi urged that the complaint by the applicant in relation to the defence of provocation is no ground upon which the Court can review its judgment. This, he said was nothing but a disguised attempt for further appeal. He urged the Court to dismiss the 3DD"cation. 'vve shall first deal with the preliminary matter raised by Mr. Bulashi, learned State Attorney, that the application for review in this matter is time barred. It is common knowledge that litigation cannot be conducted for an indefinite period, there has to be an end to any legal proceedings in a court of law. For this reason, the enactment of the Law of Limitation Act, 1971 was to provide a time - scale for instituting suits in Court. As the Law of Limitation Act, 1971 does not apply to the Court of Appeal, in Halais Pro-Chemie v. Wella A. G. (1996) TLR

5 269, this Court fixed sixty (60) days as the time - scale for applying for a revision in civil matters. In similar vein, in the case of James Masanja Kasuka v. George Humba, TBR. Civil Application No. 2 of 1997 (unreported) a time - scale of sixty (60) days was fixed for applying for review in civil matters. In Criminal Application No. 6 of 2000, Director of Public Prosecutions v. Prosper Mwalukasa (not yet reported) this Court similarly fixed the time limit of sixty (60) days in which to apply for review in criminal matters. In this application, as correctly submitted by Mr. Bulashi, learned Sute Attorney, as the decisionof this Court which is sought to be reviewed was delivered on , the application is clearly out of time. It was lodged on , a period well over the sixty (60) days prescribed. This ground alone is sufficient to dispose of this matter. However we wish to make the following brief observation. One, that even if it is taken that the application was not caught up with the limitation period of sixty (60) days, we would still have no hesitation in dismissing the

6 6 application for lack of merit. The grounds upon which the application is premised do not fall under any of the circumstances in which to invoke its jurisdiction on review. The guiding circumstances were set out by the full bench of the Court in Transport Equipment Ltd. v. Devram P. Valambhia, Civil Application No. 18 of 1993 (unreported). Elaborating further on these principles in Tanzania Transcontinental Co. Ltd. v. Design Partnership Ltd., Civil Application No. 6 of 1996 (unreported), the Court made it clear that even though the list of Circumstancesis not exhaustive, the Court invokes its powers to review Its decisions sparingly. On the other hand we also think that the applicant's plea before us in Court would also not be of any avail. He stated that it was not his intention in filing the application to pursue a further appeal in disguise. According to him, what he is seeking in this application is the Court's indulgence in order to have the sentence reduced. This is so particularly because he has been in custody for a long time and is now sorry for what he did. He vowed not to repeat the offence.

7 As s,aid before, this would not be of any avail to the applicant because remorse and plea for clemency are matters that fall within the purview of the powers vested with the President. When properly moved for prerogative of mercy after the process of appeal were completed by this Court in Criminal Appeal No. 56 of 2002 the applicant's prayer for clemency could perhaps be considered. This course of action is still open to the applicant to pursue. All in all therefore, having held that the application is time barred, it is accordingly struck out. DATEDat MWANZAthis 16 th day of March, 2007.

8 D.Z. LUBUVA JUSTICE OF APPEAL J. A. MROSO JUSTICE OF APPEAL E.M.K.RUTAKANGVVA JUSTICE OF APPEAL I certify that this is a true copy of the original.

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