Joel Samson vs Republic (Criminal Appeal No. 329 of 2014) [2019] TZCA 787 (10 December 2019)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUSSA, J.A., MKUYE, J.A., And KITUSI, J.A.l CRIMINAL APPEAL NO. 329 OF 2014 JOEL SAMSON ........................................................................ APPELLANT VERSUS THE REPUBLIC .................................. ~ ................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Mwaimu, J.l dated 9 th day of April, 2015 in {Criminal Appeal No. 55 of 2014) RULING OF THE COURT 29 th November, & 11 th December, 2019 MUSSA, J.A.: In the District Court of Kiteto, at Kibaya, the appellant was arraigned for rape, contrary to section 130 (1) (2) ( e) and 131 (1) of the Penal Code, Chapter 16 of the Laws. The particulars on the charge sheet alleged that on the 17 th day of January 2010, at Orkesmet Changanyikeni, within the District of Simanjiro in Manyara Region, the appellant had an unlawful carnal knowledge of an infant aged 13. We shall purposely disguise the true name of the alleged 1

victim and refer to her, if need be, by the acronym "PW2" which was adopted by the trial court. When the charge sheet was read over and explained at the commencement of the trial, the appellant refuted the accusation, whereupon the prosecution lined up eight (8) witnesses and a medical examination report (PF3) to establish its claim. On his part, the appellant featured himself as a sole witness and rested his case. For a reason which will shortly come to light, we need n9t explore details of the evidence adduced by both sides. Suffice it to observe that, at the height of the trial on the 4 th October, 2010 the appellant was found guilty, albeit, he was, seemingly, not formally convicted. In the final event, he was handed down a prison sentence of thirty (30) years. Dissatisfied, the appellant unsuccessfully preferred an appeal to the High Court which was dismissed in its entirety (Mwaimu, J.). Still discontented, he, presently, seeks to impugn the decision of the High Court upon a memorandum of appeal which comprises four ( 4) grounds of complaint. The respondent has greeted the appeal with a Notice of Preliminary point of objection which is predicated under Rule 4 (2) (a) of the Tanzania 2

Court of Appeals Rules, 2009 (hereinafter referred to as "the Rules'') which goes thus:- 11 This honourable Court of Appeal has no Jurisdiction to hear and determine this appeal from the High Court as it emanated from incompetent/purported appeal (Criminal Appeal No. 55 of 2014 in the High Court of Tanzania at Arusha) which had been instituted under the notice of appeal which was filed out of prescribed time limit of ten days thus contravention of section 361 (1) (a) of the Criminal Procedure Act [Cap. 20 R.E, 2002] as amended. " Although the foregoing Notice is quite unnecessarily mouthful, what the respondent contends is simply that the Notice of intention to appeal from the decision of the District Court to the High Court was belatedly given beyond the ten days prescribed by section 361 (1) (a) of the Criminal Procedure Act (hereinafter referred by the acronym "the CPA''). In a brief address before us, Mr. Innocent Njau, the learned Senior State Attorney for the respondent, urged us to strike out the appeal which, according to him, has been rendered incompetent by the mere fact that it originates from incompetent proceedings of the High Court. 3

,,.. The appellant who was fending for himself, unrepresented, had nothing useful in response, save for pleading for our indulgence to have him heard on this appeal which, he said, was fairly old. Addressing the issue of contention and, as we have already intimated, the decision of the trial court was pronounced on the 4 th October, 2010. Thereafter, the appellant dawdled along till on the 5 th June, 2014 when he expressed his intention to appeal to the High Court. This detail is borne out by his own Notice of Appeal as well as the Petition of Appeal which were lodged by the officer in-charge of the Arusha Central Prison on behalf of the appellant. To this end, it is beyond question, we so find, that the expression of the intent to appeal was made belatedly and, as it were, well beyond the ten (10) days prescribed by section 361 (1) (a) of the CPA. The preliminary point of objection is, therefore, well taken and we are, accordingly, constrained to sustain it. The appellant is therefore enjoined to refresh his expression of the intent to appeal in accordance with the law. For a moment, we toyed with the possibility to invoke Rule 47 of the Rules which permits the Court, in its discretion, to extend the time for the doing of any act. We, however, discarded the course upon realizing 4

that in terms of section 361 (2) of the CPA, it is only the High Court which may, for good cause, admit an appeal notwithstanding that the prescribed period of limitation has elapsed. When all is said and done, this appeal is, accordingly, struck out. DATED at ARUSHA this lQTH day of December, 2019. K. M. MUSSA JUSTICE OF APPEAL R.K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL The Ruling delivered this 11 th day of December, 2019 in the presence of G. H BERT DEPUTY REGISTRAR COURT OF APPEAL 5