Q&A – 7 October 2019
70 year old sentenced to 5 years
My friend was convicted of forgery and uttering false document. Even though he is 70 years and suffering from heart and kidney failure, he was sentenced to 5 years imprisonment. He has done abundant amount of community and charity work in his home region and is very old and weak. What is the way forward to help him? Can he appeal to the Court of Appeal or be admitted to bail by Court of Appeal pending the result of his appeal? Can he request for a community service order or request for amnesty from the President in December? Please guide me.
RE, Arusha
If your friend was convicted by a Magistrate Court, he may appeal to the High Court. Before he lodges his appeal, he is required to file in the Magistrate Court that convicted him, a notice of intention to appeal within ten days from the date he was convicted. If he was convicted by the High Court, he can appeal to the Court of Appeal. Before he appeals to the Court of Appeal, he must give a notice of appeal within thirty days from the date of his conviction. A notice of appeal against the decision of the High Court is filed in the High Court registry that made the decision which is a sub-registry of the Court of Appeal.
Under our law, a notice of appeal to the Court of Appeal in criminal matters institutes an appeal. After filing a notice of appeal, it is deemed that there is a criminal appeal pending at the Court of Appeal. After filing a notice of appeal, your friend can lodge an application for bail pending result of his appeal. If he was convicted by the High Court, his application for bail pending the result of his appeal by the Court of Appeal should be filed in the High Court under section 10(a) of the Appellate Jurisdiction Act. The High Court has exclusive power to hear bail application pending the result of appeal by the Court of Appeal. The Court of Appeal does not deal with bail applications pending appeals before it.
Bail pending appeal is not a right like bail pending trial. It is discretion of the Court to which the bail application is made. There is no right to appeal against an order refusing or granting bail pending the hearing of an appeal.
If a person is convicted by a Magistrate’s Court, he can apply for bail pending hearing of his appeal by the High Court under section 368 of the Criminal Procedure Act. Bail pending hearing of an appeal by the High Court can be lodged in the High Court or the Magistrate Court that convicted the applicant after filing an appeal to the High Court.
The High Court or a Magistrate Court can admit a convict to bail pending hearing of his appeal if the intended appeal has overwhelming chances of success or there are exceptional and unusual reasons that call for grant of bail and it is shown that the grant of bail will not jeopardize justice. Ill health and extreme old age may be regarded as exceptional and unusual reasons for granting bail.
Section 3(1)(b) of the Community Service Act disqualifies convicts serving a prison term exceeding three years from community service orders. By law a person sentenced to five years imprisonment like your friend is disqualified from community service orders.
Amnesty of the President is given under Article 45 of the Constitution but it cannot be applied for. It is a confidential process determined by the prison authority which selects the prisoners who are considered to have qualifications for amnesty and submit their names to the President. From past experience, prisoners who are 70 years old are always considered for amnesty.
Company with no capacity to trade
A company we dealt with apparently has no authority under its memorandum to engage in trading. We supplied the company with certain goods for trading purposes and the directors are now refusing to pay stating that the company was not allowed to trade. Not only has the company bought from us, but they have sold the goods and earned funds. What can we do?
KL, Dar
Merely because the memorandum does not state trading as one of its objects doesn’t mean that you cannot proceed against the company to recover your funds. Section 35 of the Companies Act states that (l) The validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything in the company’s memorandum. (2) A member of a company may bring proceedings to restrain the doing of an act which but for subsection (1) would be beyond the company’s capacity; but no such proceedings shall lie in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company.
Hence notwithstanding what the memorandum states, you have a cause of action against the company and can sue for recovery.
Insurance policy one sided
My household fire insurance policy states that I cannot make a claim 14 days after a fire or burglary. I was overseas and just came back into the country to find my house totally empty. Everything was stolen. My broker says that the 14 days have passed and I cannot now claim. What should I do?
UI, Dar
Your broker should be trying to protect your interests. At the moment he seems to be acting like an agent of the insurer. We have not read this weird houseowners policy but you can certainly challenge it. You might want to read the wording of the policy whether it is 14 days from the date you found out or the date of the burglary. This unfair term can be reported to the Commissioner of Insurance who has the powers under the Insurance Act to delete or amend, obscure or ambiguous terms in a policy. Unfortunately, we do not have your policy to guide you any further but we believe you can pursue this with your broker and insurer.