Said Shaibu Mwigambo vs Republic (Criminal Appeal 420 of 2021) [2023] TZCA 148 (28 March 2023)

Case summary

The case in question is a criminal appeal (No. 420 of 2021) in the Court of Appeal of Tanzania, where the appellant, Said Shaibu Mwigambo, was appealing against a decision of the High Court of Tanzania at Mtwara. The appellant was convicted on three counts of unnatural offence by the District Court of Ruangwa District and was sentenced to life imprisonment. The appellant appealed this conviction and sentence, but his appeal was dismissed by the High Court as being time-barred.

The main issue in this appeal was whether the appellant's appeal was indeed time-barred. The appellant argued that as a prisoner with limited movement, he could not have obtained certified copies of judgment and proceedings on his own, and his transfer to another prison made it difficult for him to obtain the necessary documents for his appeal. The High Court dismissed the appeal, stating that the appeal was filed out of time, contrary to the provisions of section 361 (1) (b) of the Criminal Procedure Act (CPA).

The Court of Appeal found that the High Court erred in its decision. The Court of Appeal noted that the High Court had taken into account irrelevant factors and disregarded relevant ones, such as the date on which the appellant received a copy of the judgment and the date he lodged his petition of appeal. The Court of Appeal also found that the High Court had wrongly dismissed the appeal for being time-barred, instead of striking it out for being incompetent.

The Court of Appeal also noted that the High Court had relied on an inapplicable statutory provision (section 3 (1) of the Law of Limitation Act) in dismissing the appeal, which was a serious error as criminal proceedings are expressly excluded by section 43 (a) of the same Act.

The Court of Appeal quashed the High Court's decision and ordered that the record be remitted to the High Court for hearing and determination of the appellant's appeal before another judge.

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