JOHANESS RULING FINAL2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA CRIMINAL APPEAL NO. 31238 OF 2024 (Arising from criminal case No. 000015152 of 2024 of Ngara District court at Ngara) JOHANESS S/O HIGHNESS………………...……............... APPELLANT VERSUS THE REPUBLIC............................................................ RESPONDENT RULING 15/01/2025 & 15/01/2025 E. L. NGIGWANA, J. This ruling seeks to address the issue raised suo motu by the Court as to whether the appeal is competent before the Court due to it being preceded by a time-barred notice of intention to appeal. The appellant filed the present appeal challenging the decision of the trial court in Criminal Case No. 000015152 of 2024 dated 09/10/2024. At the trial court, the appellant was charged with the offence of grave sexual abuse contrary to section 138C (1) (d) (2) (b) of the Penal Code, [Cap. 16 R.E. 2022]. 1 It was the prosecution’s case that on the 25th day of May 2024, at Mbinyange Village within Ngara District in Kagera Region, for sexual gratification, the appellant rubbed his erected penis on the vagina of the victim (PW1), a girl aged four (4) years. The appellant pleaded not guilty to the charge. Upon a full trial, the appellant was convicted and sentenced to twenty (20) years of imprisonment with an order to pay TZS. 300,000/= to the victim as compensation. Undaunted by the conviction, sentence, and the order of compensation, the appellant, through his advocate Mr. Baraka John Samula, filed this appeal based on six grounds. Since this matter will not be determined based on the said grounds of appeal, I see no reason to reproduce them here. At the hearing of this appeal, the appellant had the legal services of Mr. Baraka Samula, learned counsel, while the respondent appeared through Mr. Elias Subi, learned State Attorney. However, upon reading the record of the trial court, I discovered that the judgment which aggrieved the appellant was delivered on the 9th day of October 2024, but the notice of intention to appeal was filed on the 29th day 2 of October 2024. I therefore invited the parties to address me on the competency of this appeal. Both Mr. Elias Subi, learned State Attorney for the respondent, and Mr. Baraka Samula, learned advocate, made a similar submission: that as per section 361(1) of the Criminal Procedure Act, [Cap. 20 R.E. 2022], the notice of intention to appeal must be filed within ten (10) days from the date of the judgment or order intended to be appealed. Each of them added that since the notice of intention to appeal was filed out of time and without first seeking and obtaining an extension of time, this appeal is incompetent, and the only available remedy is to strike it out. Having heard submissions from the learned State Attorney for the respondent and the learned advocate for the appellant, I now proceed to determine the competency of this appeal. At the outset, it is crucial to point out that, save for appeals instituted by the Director of Public Prosecutions, appeals to the High Court against the decisions of the trial subordinate court are governed by the provisions of section 361 (1) and (2) of the Criminal Procedure Act, [Cap. 20 R.E. 2022], which stipulate as follows: 3 "361. (1) Subject to subsection (2), no appeal from any finding, sentence or order referred to in section 359 shall be entertained unless the appellant- (a) has given notice of his intention to appeal within ten days from the date of the finding, sentence or order or, in the case of a sentence of corporal punishment only, within three days of the date of such sentence; and (b) has lodged his petition of appeal within forty-five days from the date of the finding, sentence or order, save that in computing the period of forty- five days the time required for obtaining a copy of the proceedings, judgment or order appealed against shall be excluded. (2) The High Court may, for good cause, admit an appeal notwithstanding that the period of limitation prescribed in this section has elapsed." Reading the above-cited provisions, it is trite that an appeal must be preceded by a notice of intention to appeal lodged at the trial court no later than ten days from the date of the decision which is intended to be appealed. This is followed by a petition of appeal, which must be filed within 45 days from the date of the impugned decision of the subordinate court. In case of a delay in filing an appeal within the prescribed period, section 361 (1) (b) of the CPA excludes the period required for obtaining a copy of 4 the proceedings, judgment, or order necessary for pursuing an appeal. Additionally, under section 361 (2) of the CPA, the High Court is vested with the discretion, for good cause, to admit an appeal filed beyond the prescribed time. In the present matter, as correctly submitted by both the learned State Attorney for the respondent and the learned advocate for the appellant, and as revealed by the trial court record, the notice of intention to appeal to this Court was filed on the 29th day of October 2024, while the judgment which had aggrieved the appellant was delivered on the 9th day of October 2024. In other words, the notice of intention to appeal was time-barred, having been filed on 29th day of October 2024, which exceeded ten days after delivery of the impugned decision of the trial court. It is worth noting that the notice of intention to appeal being out of time, renders the appeal incompetent, and the only available remedy is to strike it out. See Semeni Issa vs. Republic (Criminal Appeal No. 156 of 2019) [2023] TZCA 119 (17 March 2023) Tanzlii, and Francis Petro vs. Republic (Criminal Appeal 534 of 2016) [2019] TZCA 304 (27 August 2019) Tanzlii. 5 As far as the matter at hand is concerned, since the notice of intention to appeal was filed beyond the prescribed ten (10) days from the date of the judgment, the appellant's appeal before this Court is incompetent because the notice of intention to appeal was filed out of time. Accordingly, it is hereby struck out. Should the appellant wish to pursue his appeal, he is at liberty to return to this Court for two prayers; one, and application for an extension of time to file his notice of intention to appeal and, two, an application for an extension of time to file an appeal out of time. (The two prayers are those which can be combined in one application). Dated at Bukoba this 15th day of January 2025. E. L. Ngigwana Judge 15/01/ 2025 6 Delivered this 15th day of January 2025 in the presence of the Appellant and his advocate Mr. Baraka Samula, Mr. Elias Subi learned State Attorney for the Republic/Respondent, Hon. A. A. Madulu-JLA and Ms. Florentina, B/C. E. L. Ngigwana Judge 15/01/ 2025 7