Kachanga Osmund Kinunda vs Republic (Criminal Appeal No. 296 of 2023) [2025] TZCA 1061 (10 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MKUYE, J.A., MASOUP, J.A. And ISMAIL, J.A/1 CRIMINAL APPEAL NO. 296 OF 2023 KACHANGA OSMUND KINUNDA..................................................APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Madeha, 3 .} dated the 20th day of February, 2023 in DC Criminal Appeal No. 37 of 2022 JUDGMENT OF THE COURT 07th & 10th October, 2025 MKUYE, J.A.: The appellant, Kachanga Osmund Kinunda was, before the District Court of Mbinga at Mbinga, charged with two counts; to wit, the first count of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code [Cap 16 R.E. 2019] (the Penal Code) and second count of causing grievous harm to the victim contrary to section 225 of the same Penal Code. In the first count it was alleged that on 4th February, 2021, the appellant did have

sexual intercourse with MPK (who shall be referred to as "the victim" or "PW 1"), a girl aged 16 years old while in the second count he was alleged to have thrown sand into the victim's eyes, causing her to suffer pains. When the charge was read over to him, he pleaded not guilty to both counts leading the prosecution to marshal a total of five witnesses and two exhibits while the appellant was a lone witness in defence. The facts leading to this appeal are that: The victim was aged 16 years old having been born in 2005. In the morning of 4th February 2021, while walking alone to Litembo Secondary School along a laboratory road near a small river, she encountered the appellant. As she was about to pass through a short cut to the school as directed by him, she was chocked and dragged by the appellant to a nearby maize farm. Then, he stuffed her with sand and grasses into her eyes and mouth to blind and silence her. He also destroyed her school uniform and underwear and forcibly had sexual intercourse with her causing severe pains as it was her first experience to the extent that she fell unconscious. She then shouted for help where upon one, John Kinunda (PW2) responded and removed the grasses from her mouth and took her to Litembo Police Station. Thereafter, she was taken to Litembo Hospital for treatment where she was

attended by the medical doctor Maurus Ndomba (PW4) and was hospitalized for some few days. According to PW2 and the victim mentioned the appellant who was familiar to them residing in the same village to be responsible for ravishing her. According to F. 6842 D/91 Josiah C. Otege (PW5), the matter involving the victim was reported at the police station on 4th February 2021 where upon the victim mentioned the appellant to be responsible for raping her. As an investigator he visited the scene of crime and drew a sketch map which was admitted as exhibit P2. Eventually, the appellant was arrested at Mbinga Town and arraigned before the court. In his defence, the appellant distanced himself from the commission of the offence claiming that he was arrested on 21s t March 2021 while travelling from Mbinga to Litembo village without being told the reason for his arrest. He claimed to have been beaten by the police officers and coerced to confess the commission of the offence while demanding TZS 600,000/= for his release, which he did not have. He disputed the evidence of PW2 that she was 16 years old alleging that she was 17 years old and attributed the case to jealous over his success as a peasant. He also challenged the Doctor's report confirming rape while the victim was found with no wounds.

At the end of the trial, the District Court convicted the appellant on both counts and sentenced him to thirty years imprisonment for the offence of rape and twelve months for grievous harm which sentences were ordered to run concurrently. His first appeal to the High Court was dismissed for want to merit. Aggrieved, he has now brought this appeal on seven grounds of appeal challenging both the conviction and sentence primarily, on the insufficiency of evidence, identification, procedural irregularities, evaluation of prosecution evidence and failure to consider defence case. However, for a reason that will become apparent shortly, we shall not determine them. When the appeal was called on for hearing, the appellant appeared in person without any legal representation. On the other hand, the respondent had the services of Ms. Mwajabu Tengeneza, learned Principal State Attorney together with Mr. Frank Chonja, learned State Attorney. Before the appeal could commence for hearing in earnest, Mr. Chonja brought to the attention of the Court a point of law which was discovered in the course of preparation for hearing of this appeal. He contended that, the judgment of the District Court as shown at page 24 to 34 of the record of appeal was delivered on 3r d August 2021. However, the notice of intention

to appeal as appears at page 37 of the record shows that it was lodged on 13th October 2022. He said, having perused the record, he was unable to see if there was an application for extension of time to lodge it out of time. According to Mr. Chonja, the notice of appeal was lodged almost more than one year from when the decision sought to be challenged was issued. He pointed out that, in terms of section 361 (1) (a) now 382 (1) (a) of the Criminal Procedure Act, Cap 20 R.E. 2023 (the CPA), the person wishing to appeal against the subordinate court's decision has to lodge his notice of intention of appeal within ten days from the date of such decision. Failure to do so renders the appeal to be time barred. He concluded that, since the High Court entertained the appeal without a proper notice of appeal, it follows that whatever was done by it was a nullity. He also added that, even the appeal at hand is incompetent for having emanated from a nullity. As a remedy, he urged the Court to invoke its revisional powers to nullify the proceedings of the High Court and the resultant judgment and the appellant be advised to go back to the High Court in order to apply for extension of time so that he can be able to appeal. Otherwise, he beseeched the Court to strike out this appeal for being incompetent.

In response, the appellant contended that he lodged his notice of intention to appeal within ten days after his admission in prison. The issue for this Court's determination is whether the notice of appeal against the decision of the District Court of Mbinga was lodged out of time. Having perused the record of appeal, we agree with the learned State Attorney that the appellant lodged his notice of appeal on 13th October 2022 against the decision of the District Court that was handed down on 3r dAugust 2021. This was after a period of more than a year from the date of the pronouncement of the judgment which was sought to be impugned. This was contrary to the provisions of section 361 (1) (a) of the CPA which provides that: "Subject to subsection (2), no appeal from any findingsentence or order referred to in section 359 shaii be entertained unless the appellant - (a) has given notice o f his intention to appeal within ten days from the date o f the findingf sentence or order or in the case o f a sentence o f corporal punishment oniyf within three days o f the date o f such sentence. (b) ...n/a . . . " [Emphasis added]

According to the above provision, the notice of intention of appeal is mandatorily required to be lodged within ten days from the date of the finding, sentence or order. However, as alluded to above, the notice of appeal in this case was lodged on 13th October 2022 after the impugned decision was handed down on 3rd August 2021 which was a period of more than a year. Unfortunately, there is no indication in this record of appeal that the appellant applied and was granted extension of time to file it after the required time had lapsed. Therefore, the notice of appeal was hopelessly time barred and therefore he ought to apply for extension of time. On the other hand, it is crystal clear that the High Court entertained the appeal which was preceded with an invalid notice of appeal and determined it. As the High Court entertained the appeal therefore, there is no doubt that it dealt with an incompetent appeal. This implies therefore that, the proceedings that followed before the High Court and the resultant judgment were a nullity for want of a valid notice of intention to appeal. In the event, we invoke our revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2023 and nullify the proceedings and judgment of the High Court for being a nullity. We further quash proceedings and judgment of the High Court and the resultant order. Besides

that, we strike out the appeal for being incompetent and direct that the appellant is at liberty to file his appeal to the High Court against the decision of the District Court of Mbinga subject to his compliance with the law. DATED at SONGEA this 10th 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 10th day of September, 2025 in the presence of the Appellant in person, Mr. James Rhobi, Ms. Agnes Simba, learned State Attorneys for the Respondent/Republic and Ms. Gloria Masige, Court Clerk, is hereby R