Simon Hyera vs Republic (Criminal Appeal No. 297 of 2023) [2025] TZCA 1091 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SON6EA (CORAM: MKUYE, J.A., MASOUD, J.A. And ISMAIL, J J U CRIMINAL APPEAL NO. 297 OF 2023 SIMON HYERA............................................................................................. APPELLANT VERSUS THE R EP U B LIC ................................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Songea) (Luvanda, 3 .) dated the 17th day of February, 2023 in DC Criminal Appeal No. 40 of 2022 JUDGMENT OF THE COURT 10th & 13th October, 2025 MASOUP, JA,: The appellant was convicted of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16. The offence was, allegedly, committed by him on 13th April 2021 at Luhehe within Mbinga District in Ruvuma Region. The victim who was, allegedly, carnally known by the appellant was then aged 11 years and at the trial she testified as PW2. We gather from the prosecution case that on 13th April 2021 in the evening hours when the victim was on her way back home from school, she met the appellant on the way. The appellant grabbed and pulled her to the bush. While at the bush, the appellant pushed the victim down on the

grasses, unzipped and lowered his pair of trousers and undressed the victim as he threatened her not to scream as if she does, he would cut her neck right away. Consequently, the appellant inserted his penis into the victim's vagina and went ahead to lavishly thrusting it inside out for some time. Once he was done, he left the scene leaving behind the victim as she was dressing and struggling in pain to collect herself at the bush and get back home. The victim, ultimately, managed to get home and immediately thereafter informed her mother the ordeal that she went through. Her mother conveyed the bad news to the victim's father (PW2) who subsequently on 14th April, 2021 reported the incident to Village Executive Officer (VEO). The reporting about the incident resulted in the appellant's arrest and referring the matter to the police and the examination of the victim by PW3 on 15th April, 2021. PW3's examination of the victim revealed that the victim was not virgin and she had minor bruises suggesting penetration by a blunt object. The appellant denied to have raped the victim alleging that the charge laid against him was concocted. He went on saying that, the victim was not only like her nephew and had no grudges with her, but also, they were neighbours. He, additionally, contended that he was arrested because he refused to contribute to the village. After the trial, the trial court found him guilty of the offence. It convicted and cpnt-onm^

dissatisfied with the decision of the trial court, he appealed to the High Court which in the end upheld the trial court's decision. As he was also not contented with the High Court's decision, he lodged his second appeal to this Court seeking to challenge the concurrent findings of the two lower courts on a number of grounds which we find it unnecessary to reproduce them. When the appeal was called on for hearing, the appellant appeared in person without representation. On the other hand, the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney who teamed up with Mr. Frank Chonja and Ms. Agnes Simba, learned State Attorneys. Ahead of the commencement of the hearing, Mr. Chonja, with our leave, addressed us on a preliminary point of law that they came across as they were preparing for the hearing which affects the competency of the appeal before the High Court. He argued that, the notice of intention to appeal against the decision of the District Court to the High Court was lodged out of time on 13th October, 2022 while the impugned judgment of the trial court was delivered on 25th August, 2021. It means, according to Mr. Chonja, that the notice was filed after a lapse of about 14 months contrary to the mandatory requirement of the provision of section 361 (1) (a), now section 382 (1) (a) of the Criminal

Procedure Act, [Cap. 20 R.E 2023] (the CPA) which requires such notice to be lodged within ten (10) days from the date of the decision. As the record of appeal before the Court has nothing to the effect that the appellant applied and obtained an extension of time to file the notice on that date, the learned State Attorney submitted that the High Court had no jurisdiction to hear and determine the incompetent appeal that was before it, for it was time barred. He then urged us to find that, whatever was done by the High Court was a nullity. Consequently, he invited us to nullify the proceedings and judgment of the High Court and strike out the instant appeal before the Court which arose from a nullity. On the part of the appellant, he had nothing useful in reply. We have, on our part, examined the record in light of the submissions by the learned State Attorney. It is, indeed, true that the record of appeal at pages 25 to 36 is clear that the judgment of the trial court was delivered on 25th August, 2021 while the notice of intention to appeal at page 40 of the same record shows that it was filed on 13th October, 2022 after a period of more than 14 months. As there is nothing on the record to the effect that the appellant sought and obtained extension of time, it follows that the notice was filed contrary to section 382 (1) (a) of the CPA which rendered the appeal incompetent as submitted by Mr. Chonja. As such, whatever was done by the High Court

was a nullity as also submitted by Mr. Chonja. See, George Daudi v. Republic [2019] TZCA 502. In the results, we invoke our revisional powers under section 6 (2) of the Appellant Jurisdiction Act, [Cap 141 R.E. 2023] and nullify the proceedings and judgment of the High Court in DC Criminal Appeal No. 48 of 2021, quash the decision which upheld the conviction and sentence imposed by the trial court. As to the incompetent appeal before the Court, we, accordingly, strike it out. If the appellant still wishes to challenge the trial court's decision, he may do so in accordance with the law. DATED at SONGEA this 11th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 13th day of October, 2025 in the presence of the appellant in person, Mr. James David Rhobi, learned State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby certified as a true copy of~tbe original.