mashaka mohamed njuju vs the republic 2023 tzhc 22259 31 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 89 OF 2023 (Arising from Economic Case No. 2 of2023 in the District Court of Babati at Babati) MASHAKA MOHAMED NJUJU.................................................. APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT RULING 31st & 31st October, 2023 Kahyoza, J. Mashaka Mohamed Njuju was charged and convicted with the offence of unlawful possession of government trophy. He was sentenced to pay a fine of Tzs. 350,000,000/- or serve an imprisonment term of 20 years. Aggrieved, he appealed against the conviction and sentence. Before the court herd Mashaka's appeal, Mr. Kapera, learned state attorney raised a preliminary objection that Mashaka did not move the court properly as he lodged a notice of appeal out of time. He contended that the trial court delivered the judgment on the 11.5.2023 and the appellant lodged the notice of appeal on 29.5.2023. The notice of appeal was required to be filed any time before 21.5.2023, the state attorney added. He prayed the i appeal to be struck out and the appellant advised to file the appeal out of time. The appellant, a lay person had nothing substantive to reply as the raised issue was legal. He prayed the court to find that the appeal was lodged on time. He also complained that he had not been given a copy of the proceedings. I wish to state at the outset that the law is settled that a person intending to appeal against conviction and sentence to this Court, ought to give a notice of appeal, in the present case, within 10 days from the date of judgment. Section 361 (1) of the Criminal Procedure Act, state that;- "361 (1) Subject to subsection (2) an appeal from any finding, sentence or order referred to in section 259 shall not be entertained unless the appellant- (a) has given notice ofhis intention to appeal within ten days from the date of the finding, sentence or order or..........." An appeal is incompetent if lodged with a defective notice of appeal or without lodging a notice of appeal. The records shows that the appellant was convicted on 11.5.2023. He filed the notice of appeal with the Court of Resident Magistrate on 29.5.2023. The court received the notice of appeal on the 29.5.2023, although it seems the appellant signed it on the 12.5.2023, I have used the word it seems as the date when the appellant signed was 2 corrected using the correction fluid. It might have been tempered with. The law is silent as to whether the appellant ought to submit the notice of appeal to the court or the officer in-charge of prison. Section 363 of the CPA, states that when the appellant is in prison, he may present the petition of appeal to the officer in-charge of prison. Thus, the date the presented the petition of appeal to the officer in-charge is the date of lodging the appeal. The law does not provide for a similar circumstance when the prisoner files a notice of appeal. For that reason, a notice of appeal has to be given to the court and the date of submission is the date when it is orally given or when a written notice is submitted to the trial court. Since the appellant submitted the notice of appeal to the trial court on 29.5.2023, he did so out of time. The appellant's notice of appeal was lodged out of time, the fact which renders the current appeal incompetent. The appellant appealed without first giving a notice of his intention to appeal within 10 days. Consequently, the appeal is incompetent, I struck it out if the appellant wishes may apply for extension of time to give a notice of intention of appeal and also to appeal out of time. It is ordered accordingly; J. R. Kahyoza Judge 31/10/2023 3 Court: Ruling delivered in the presence of the appellant, and Mr. Kapera S/A. B/C Ms. Fatina present. n J. R. Kahyoza Judge 31/10/2023 4