Jamal Manji and Company v. Republic, Crim. App. 316 – M – 70; 29/7/70; Onyiuke J.

Jamal Manji and Company v. Republic, Crim. App. 316 – M – 70; 29/7/70; Onyiuke J.

The appellant, a first offender, pleaded guilty to permitting a motor vehicle to be driven on the public road without affixing or exhibiting a motor vehicle licence in the prescribed manner ad sentenced to a fine of Shs. 400/- or distress in default. His notice of intention to appeal against sentence was filed 19 days after the 10 days prescribed by s. 3124(a) C.P.C. for filing such notice, this being caused by the fact that it was mistakenly sent to Mwanza instead of Musoma. Another notice was sent to Musoma after the mistake had been discovered. The petition of appeal was however filed in time. When the appellant made this application for leave to file notice of intention to appeal out of time, it was argued by the State that since a judge of the High Court (Mnzavas J) had refused to entertain the appeal because of failure to comply with s. 314(a) C.P.C., the Court had become functus official and could not entertain the appeal:

            Held: (1) “The compliance required by section 314 is total. A partial compliance, as by giving the notice of appeal in time but lodging the petition out of time or vice versa is not enough. A partial compliance creates, at most, an imperfect appeal which by section 314 cannot be entertained.” (2) “he right of appeal conferred by section 312 of the C.P.C would be lost if the periods of limitation prescribed in section 314 (a) (b) were not complied with. The proviso to section 314, however, provides that the High Court may, for good cause, admit an appeal notwithstanding that the periods of limitation have elapsed, that is to say, restore the right of appeal and treat an imperfect appeal as valid and proper appeal or allow a notice of appeal to be given and petition of appeal to be lodged out of

time, where no steps have been taken by the prospective appellant. When the curt has exercised this power in favour of an appellant or prospective appellant it would then proceed to entertain tit (consider or deal with it either under section 317 or 319 of the C.P.C. This power to admit an appeal cannot be exercised unless good cause is shown. The good cause has invariably to be shown by the appellant or prospective appellant. He initiates the proceeding by moving or applying to the court to exercise its power under the proviso. But where the Court, ex propio motu, decides to exercise its powers under the proviso, then, I think that it should give the appellant an opportunity to show cause before making an order thereunder.” (3) “A close study of the said ORDER showed the Mnzavas, J. merely refused to entertain the appeal because section 314 (a) and (b) had not been complied with. Furthermore, he made no order striking out or dismissing the appeal, apparently leaving it opens to the appellant to show good reasons to the Court to admit the appeal. Had an ORDER been made striking out the appeal as incompetent there might have been some substance in the State attorney’s contention. The question before me is whether to admit the appeal for good cause, a matter which was never before Mnzavas, Ag. J.” (4) The appellant was anxious to pursue the appeal by engaging counsel promptly. The mistake in relation to the original notice was caused by a clerical error by counsel and appellant ought not to be penalized for this. Good cause has been shown to admit this application. Sentence reduced to a fine of Shs. 150/- (5) Appeal allowed.