jerome lazaro mpombo vs the republic 2023 tzhc 19788 3 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SONGEA

AT SONGEA CRIMINAL APPEAL NO. 29 OF 2023 JEROME S/O LAZARO MPOMBO .………….…………...….………. APPELLANT

VERSUS THE REPUBLIC …………………………………….……..…………… RESPONDENT (Originating from the decision of the District Court of Nyasa at Nyasa in Criminal Case No. 1 of 2023)

RULING 2nd and 3rd August, 2023 KISANYA, J.: The appellant, Jerome s/o Lazaro Mpombo was charged with and convicted by the District Court of Nyasa at Nyasa (the trial court) of the offence of stealing contrary to section 265 of the Penal Code [Cap 16 R.E. 2022]. He was sentenced to serve five years imprisonment. Undaunted, he has appealed to this Court to challenge the decision of the trial court. When the matter was called on for orders on 2nd August, 2023, the appellant appeared in person, whilst Mr. Gaston Mapunda and Ms. Lucia Bukuku, learned State Attorneys appeared for the respondent. 1 At the outset, Mr. Mapunda informed the Court that the respondent was intending to raise a point of law that, the appeal is incompetent for want of a valid notice of intention to appeal. After a short dialogue with the Court, the appellant readily conceded that his notice of intention to appeal shows that he is aggrieved by the District Court of Mbinga at Mbinga in Criminal Case No. 1 of 2023. He left it to this Court to decide in accordance with the law. On his part, Mr. Mapunda was of the view that the appellant has conceded that the appeal is incompetent before this Court for being accompanied by a defective notice of intention to appeal. He then moved this Court to strike out the appeal and advise the appellant to lodge a fresh appeal after seeking extension of time within which to

give the notice of intention to appeal. To reinforce his argument, the learned State Attorney cited section 361(1)(a) of the Criminal Procedure Act, Cap. 20, R.E. 2022 (the CPA) and the case of R vs Mwesige Geofrey and Another, Criminal Appeal No. 355 of 2014 (unreported). He contended that, the appellant’s notice of intention to appeal was not given in the trial court as required by the law. That said, Mr. Mapunda reiterated his argument that the proper recourse is to strike out this appeal. 2 In his brief rejoinder, the appellant prayed for extension of time within which to lodge a valid notice of intention to appeal. Having considered the submissions of both parties, the issue for determination is whether the appeal is competent before this Court. It is discerned from the provision of section of 361(1)(a) of the CPA that an appeal from the decision of the District Court or Resident Magistrate’s Court cannot be entertained unless the appellant has given his notice of intention to appeal within ten days from the date of the impugned decision. It is also a settled position which was restated in the case of Mwesige Geofrey (supra) that, a notice of intention to appeal should be given to the trial subordinate court. In the present case, it is not disputed that the notice of intention to appeal was given to the District Court of Mbinga in lieu of the trial court. Further to this,

the notice of intention to appeal is to the effect that the appeal is against the decision of the District Court of Mbinga in Criminal Case No. 1 of 2023 while the decision appended to his petition of appeal was delivered by the District Court of Nyasa. In that regard, I agree with Mr. Mapunda that this appeal is incompetent for want of a notice of 3 intention to appeal against the impugned decision of the District Court of Nyasa. Being guided by the provision of section 361(1)(a) of the CPA, I hold that this appeal cannot be entertained. For the foregoing reasons, I hereby strike out this appeal. The appellant is advised to seek extension of time within which to give his notice of intention to appeal out of time and file the petition of appeal. It is so ordered. DATED at SONGEA this 3rd day of August, 2023. S.E. KISANYA

JUDGE 03/08/2023 4 Ruling delivered this 3rd day of August, 2023 in the presence of the appellant and Mr. Gaston Mapunda, learned State Attorney for the Respondent. Right of appeal explained. S.E. KISANYA

JUDGE 03/08/2023 5