godfrey ramso kasyanjo vs republic 2023 tzca 17902 7 december 2023

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MWANDAMBO, J.A., KITUSI, J.A., And MGONYA, J.A.^ CRIMINAL APPEAL NO. 623 OF 2020 GODFREY RAMSON KASYANJO.......................................................APPELLANT VERSUS THE REPUBLIC............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (MambLJQ dated the 28th day of September, 2020 in Criminal Appeal No. 78 of 2019 RULING OF THE COURT 5th & 7th December, 2023 MWANDAMBO, 3.A.: The appellant, Godfrey Kasyanjo was aggrieved by the decision of the High Court (Mambi, J) sitting at Mbeya delivered on 28 September 2020 sustaining conviction and sentence on the offence of rape entered by the District Court of Rungwe in Criminal Case No. 8 of 2016. He has preferred the instant appeal upon eight grounds of appeal. For reasons which shall become apparent shortly, we shall not deal with the merits of the appeal. By way of background, the appellant stood charged before the trial court sitting at Tukuyu on the offence of statutory rape of a 13 years girl. He was subsequently found guilty and convicted as charged by A.V. Tarimo, RM in a judgment delivered on 15 July 2016 earning him a mandatory sentence of 30 years' imprisonment. Aggrieved, he appealed to the High Court vide Criminal Appeal No. 196 of 2016. However, that appeal was not determined on merit upon the High Court (Mongella, J) discovering an omission by the trial court to enter conviction as required by section 312 (2) of the Criminal Procedure Act (the CPA). The learned judge quashed that judgment with an order remitting the trial court's record for composition of a fresh judgment according to law within 30 days from 4 June 2019; the date of the order. Subsequently, the appellant lodged a notice of appeal on 6 July, 2019 from a judgment shown to have been delivered on 28 June 2019 by A. O. Nzowa, District Magistrate in Criminal Case No. 08 of 2016 followed by a petition of appeal in Criminal Appeal No. 78 of 2019. That appeal was placed before Mambi, J who dismissed it in a judgment delivered on 28 September 2020, hence this appeal. When the appeal was called on for hearing, the appellant appeared in person, unrepresented. Ms. Revina Tibilengwa, learned Principal State 2 Attorney represented the respondent assisted by Ms. Zena James and Mr. Lordgud Eliamani, both learned State Attorneys. Before hearing began in earnest, the Court drew the attention of the appellant and the respondent's attorneys regarding absence of the impugned judgment in the record of appeal. It did so upon information by the Deputy Registrar of the fruitless efforts to obtain the said judgment as well as the underlying proceedings of the trial court after the order made by the High Court on 4 June 2019. Ms. Tibilengwa was candid that the hearing of the appeal cannot proceed in the absence of the impugned judgment. Initially, the learned Principal State Attorney had wanted the Court to strike out the appeal but a little later, she invited the Court to invoke its revisional powers under section 4 (2) of the Appellate Jurisdiction Act (the AJA) by quashing the judgment of the first appellate court with a direction for a fresh hearing of the appellant's Appeal No. 78 of 2019. She did so after realizing that the record does not indicate that the first appellate court was seized of the trial court's proceedings and judgment before determining it in Criminal Appeal No. 78 of 2019. For his part, the appellant was adamant that hearing should proceed regardless of the absence of the impugned judgment considering that he has been in custody for seven years. 3 It is beyond peradventure that despite the appellant's urging, hearing of the appeal cannot proceed in the absence of the impugned judgment. We are alive to the appellant's duty to attach a copy of the impugned judgment and proceeding to his petition of appeal in terms of section 362 (2) of the CPA. The problem is compounded by what transpired before the first appellate court. Our reading of the record of appeal reveals that, at all time from 29 October 2019 when the appeal was called on for hearing for the first time until 12 March, 2020, the respondent's attorneys had not yet been availed with a copy of the impugned judgment. Besides, there is no indication that the first appellate court had been seized with the proceedings and judgment following a calling for record made on 2 March 2020. The record reveals further that, on 2 June 2020, the appellant prayed for amendment of his appeal but there is no indication that such prayer was attended to. Instead, the High Court scheduled the hearing to 15 June 2020 on which date, Ms. Zena James, learned State Attorney is recorded to have been ready for hearing. So was the appellant whom is recorded to have shown to be relying on his grounds of appeal. After hearing the learned State Attorney resisting the appeal in hardly 12 printed lines of arguments and the appellant in rejoinder, the first appellate court reserved its judgment to 15 June 2020. Nonetheless, judgment was not delivered until 28 September 2020 pursuant to its last order shown to have been made on 17 August 2020. However, the record does not reflect any proceedings on that date. It is curious also that, page 66 of the record shows that DC. Criminal Appeal No. 78 of 2019 originated from Mbeya District Court at Mbeya in Criminal Case No. 8 of 2016. In our view, the totality of the foregoing is indicative of the doubts expressed by Ms. Tibilengwa that the first appellate court appears to have determined the appeal without being seized of the impugned judgment. This is so considering that the record does not reflect that the trial court's record after the order of the High Court made on 4 June, 2019 ordering the judgment to be composed afresh was availed to the first appellate court in DC Criminal Appeal No. 78 of 2019. At any rate, the appellant had prayed to amend his appeal but there is no indication that the High Court addressed itself on that prayer. Consequently, we are constrained to agree with Ms. Tibilengwa that the noted anomalies warrant the exercise of the Court's revisional power vested on it under section 4 (2) of the AJA. Accordingly, we quash the judgment of the High court and its proceedings from 2 June 2020 for 5 being a nullity. Having so done, we remit the matter to the High Court with a view to dealing with Criminal Appeal No. 78 of 2019 in accordance with the law. Considering the time, the appellant has spent in custody, we direct that the matter be dealt with expeditiously. It is so ordered. DATED at MBEYA this 7th day of December, 2023. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 7th day of December, 2023 in the presence of appellant in person, unrepresented, and Ms. Zena James, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.