CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MUGASHA. 3.A.. MLACHA. J.A, And NGWEMBE, J.A.) CRIMINAL APPEAL NO. 642 OF 2020 JUMA HUSSEIN......................................................APPELLANT VERSUS THE REPUBLIC.................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Tiqanqa, 3.) dated the 26th day of August, 2020 in DC. Criminal Anneal No. 58 of 2020 ORDER OF THE COURT MADE UNDER RULE 39 f 101 THE TANZANIA COURT OF APPEAL RULES. 2009 9th & 12th August, 2024 MUGASHA. 3.A.: When the appeal was called on for hearing, the appellant appeared in person unrepresented. The respondent ' had the services of Ms. Magreth Mwaseba, leaned Senior State „ Attorney who co- appeared with Messrs. Deogratias Richard Rumanyika and Sileo Leonce Mazullah, both learned State Attorneys. Before the commencement of the hearing, we wanted to satisfy ourselves on the propriety or otherwise of the appeal given that, the appellant's notice of appeal was lodged by learned advocate Innocent Michael from Droits Chamber on 28/9/2020 which is beyond the prescribed thirty (30) days from the date of the impugned decision. Upon taking the floor, Ms. Mwaseba submitted that, since the impugned judgment was delivered 26/8/2019, the notice of appeal ought to have been filed within thirty (30) days that is, not later than 25/9/2020 as required under Rule 68 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Thus, he contended that, as the notice of appeal was lodged on the 33rd day that is, 28/9/2020 which is beyond the prescribed period, given that it is the notice of appeal which institutes an appeal, the appeal is rendered incompetent. She thus, urged us to strike out the appeal. On the other hand, this being a point of law, the appellant who is lay person had nothing to add apart from confirming that the notice of appeal in question was lodged by an advocate. According to Rule 68 (1) of the Rules, it is the notice of appeal which institutes an appeal and it prescribes the period within which the notice of appeal must be lodged having stipulated as follows: 68.-(1) Any person who desires to appeal to the Court shallgive notice in writing, which shall be lodged in triplicate with the Registrar o f the High Court at the place where the decision against which it is desired to appeal was given, within thirty days of the date of that decision, and the notice of appealshall institute the appeal. [Emphasis supplied] In case the appellant is in prison, Rule 75 (1) of the Rules, categorically stipulates as follows: "75.-(1) I f the appellant is in prison, he shall be deemed to have complied with the requirements ofRules 68, 72, 73 and 74 or any of them by filling Form B/l, Form C/1 and handing over to the officer-in- charge of the prison in which he is serving sentence his intention to appeal and the particulars required to be included in the memorandum o f appeal or statement, pursuant to the provisions o f those Rules." [Emphasis supplied] In case the appellant is in prison, it is envisaged that he shall be deemed to have filed a notice of appeal on the date of handing it over to the officer-in-charge of the prison in which he is serving sentence. This arrangement does not extend to those who opt to file their notices of appeal through advocates which must be filed within 30 days from the date on impugned judgment as mandatorily required by Rule 68 (1) of the Rules. In other words, Rule 75 (1) of the Rules stands out as an exception to Rule 68 (1) of the Rules. We agree with the learned Senior State Attorney that the appellant's notice of appeal was filed beyond the prescribed thirty (30) days. There is no evidence that the appellant sought and obtained extension of time to file the respective notice of appeal beyond the prescribed thirty days. Thus, since it is the notice of appeal which institutes an appeal, the purported appeal is not properly before the Court on ground of being incompetent, we accordingly strike it out. 4 It is so ordered. DATED at MWANZA this 12th day of August, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L M. MLACHA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Order delivered this 12th day of August, 2024 in the presence of Appellant who appeared in person, Ms. Stella Minja, Mr. Ibrahim Salim and Ms. Bitunu Yunus Msangi, both learned State Attorneys for the Respondent / Republic, is hereby certified as a true copy of the original. U R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 5