20111117 TZCA Arusha

1·,•l- IN THE COURT OF APPfAL OF TANZANIA '_1 ATARUSHA ~ I CORAM: (RUTAKANGWA,J.A., LUANDA, J.A., And ORIYO,J.A.) I . r. . . . . . . . . . . . . . . :, CRIMINAL APPEAL NO. 12 OF 2009 1. BRAYAN GIVONCE KITILYA ............... 1 sr_ APPELLANT · I ND · 2. EMMANUEL JOHN SHIRIMA ............................................... 2 ~ APPELLANT' I VERSUS , I ,l THE REPUBLIC ..................................... ,.~~ .................•............... RESPONDENT ' ,I (Appeal from the Judgment of~he High Court of Tanzania i at Mos~i). 1: . (RiJgazia J.) 1 . .I , th Dated 14 Nove,mber, 2008 . II in I · DC. Criminal Appeal; No. 86 of 2007 . .:. ' . (>· 11 JUDGMENT OF THE COURT 16TH & 18TH November, 2011 ORIYO,J.A,: The appellants were jointly charged ,with "armed robbery contrary to section 287 of the Penal Code as,ameJded by Act No. 4/2004 as rectified . . I'I. ' .. by Government Notice No. 269 of 2004". They denied the charge. The .I , ' District Court of Moshi at Moshi convid~d them as charge_d and sentenced ' I 1 each to 30 years imprisonment. Aggrieved by the conviction and sentence they unsuccessfully appealed to the High Court, hence this appeal. In the trial court, the evidence that was led showed that on 13th July 2005, the appellants who were residents of Mawanjeni Village, Moshi Rural District, stole a total of shs 300,000/= from PWl, Magdalena Kitilya, a grandmother of the first appellant. The stealing was witnessed by PW2 Judith Kitilya, who lived in the same house with PWl. Further allegation ' c1.'' .,· .. ' c;, was that during the stealing, the second appellant, a neighbour of PWl and PW2, threatened to use actual violence against PWl and PW2 by pointing a pistol at them in order td obtai:~ and retain the stolen money. The appellants jointly lodged a memorandum of appeal in this Court with 6 grounds of appeal. When the appeal was called on for hearing, Ms Javelin Rugaihuruza, learned State · Attorney appeared for the respondent/Republic. The 2 appellants who were unrepresented fended for themselves. Ms Rugaihuruza, learned State Attor~ey, rose to argue a preliminary point of objection, notice of which had been filed earlier. The respondent's objection was that:- "The appeal is incompetent as the Notice of Appeal filed on 1dh November, 2008 by the Appellants is against conviction and sentence of Criminal Appeal No. 82 of 2007 while the i ·•' High Court record· is of Criminal Appeal No. 86 of 2007 which contravene Rule 61 (2) of the rules of the Co(!rt of Appeal of 1979" ,• .. /. Ms Rugaihuruza submitted that as the Notice of Appeal on the record of appeal is against a decision of Rugazia, J. in Criminal Appeal No. 82 of 2007 which is not on record, then the said Notice of Appeal is defective. She further submitted that since it is a Notice of Appeal which institutes an appeal, the defective notice of appeal renders the appeal incompetent for .·, lack of a Notice of Appeal. She asked the Court to strike out the Notice of 3 Appeal for contravening rule 61 (1) of the then Court of Appeal Rules, 1979, (the Rules). The appellant's response ~as brief. Each called upon the Court's sympathy to them as prisoners so that their appeal is not dismissed but heard on merit. Rule 61 (1) of the Rules provided:-··• '~ny person who desires to appeal to the Court shall give notice in writing, which shall be lodged in triplicate with the Registrar of the High Court at the place where the decision against which it is desired to appeal was given, within fourteen days of the date of that decision, and the notice of appeal shall institute the appeal." (Emphasis supplied). According to the record, at pages 59 and 60 are the notices of appeal of Brayan, the first appellant and Emanuel, the second appellant, respectively. Both notices of appeal show that they are appealing against 4 I the decision of Rugazia, l., delivered on 14th November, 2008 in Criminal Appeal No. 82 of 2007. , . I We think that Ms Rugaihuruza has a valid point. The appeal before I I the Court is against the decision of Rugazia,l. in Criminal Appeal No. 86 of 2007. That decision was delivered on 14th November, 2007. If at all there is another decision of Rugazia,' J. delivered on 14th November, I 2007 in Criminal Appeal No. 82 of 2007, that will be a different case I altogether and not the appeal before us. 1 And as correctly submitted by Ms,' Rugaihuruza that since it is a , :: :· : 1 I I notice of appeal which institutes a criminc;1I appeal to this Court in terms of I rule 61 (1) of the rules, the appellants' notices of appeal against the decision of Rugazia, J. in Criminal: Appeal No. 82 of 2007 is defective and : ·f ' p . c; not capable of instituting an appeal against criminal appeal number 86 of I 1· 2007, which is the actual decision complained of. • I 5 I In terms of Rule 61 (7) of the Rules, a notice of appeal shall be substantially in the form "B" in the Fist Schedule to the rules. The I mandatory details to be provided in a noticeI of appeal in Form "B" are the I details on the impugned decision whic~ include the name of the originating High Court centre,·the name of the High Court Judge, the date of the decision and the nu~ber of the case complained I of in the High Court. The appellant's notices of appeal in this Court are I defective for failure to comply with the format under rule 61 (7) above of the rules for lack of the number of the High Court case complained I of. I As much as we sympathize _wjth t~e appellants, being alive to their ., I being prisoners without the freedom to· do things on their own, our hands are tied by the dictates of the law. We have already stated that the notice of appeal is defective for I citing a wrong number of the decision ,'appealed against. Therefore there ' 6 I I I I ! I was no lawful appeal instituted in this Court. The inevitable conclusion is to strike out the purported appeadis we-'hef~by ' do. ,, For the appellants this is not necessarily the end of the road for them. Subject to the law of limitation, if thj appellants still wish to protest their innocence, they may file a fresh noti!e of appeal to this Court after seeking from the High Court and :be;ng' ~tJnted an extension of time: It is so ordered. DATED at ARUSHA this-1f~;·a:ay dt November, 2011. 'I', ·, .. E. M. K. RUTA c.NGWA JUSTICE OF APPEAL .,- I B. M. LUANDA JUSTICE OF ~PPEAL . ;I K:K. ORIYO ' JUSTICE 'OF APPEAL I certify that this is a true copy of:t original. · . 1 ·,, .: · . 1 I··t · .•• ·.. .: .i'. , .. · Z. A. Marpma DEPUTY REGISTRAR · 7