Ally Said Sangu vs Republic (Criminal Appeal No. 293 of 2023) [2025] TZCA 1054 (9 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MKUYE, J.A.. MASOUP, J.A. And ISMAIL, J.A^ CRIMINAL APPEAL NO. 293 OF 2023 ALLY SAID SANGU....................... ................................................ APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Luvanda, J.) dated the 17th day of February, 2023 in DC. Criminal Appeal No. 42 of 2022 JUDGMENT OF THE COURT 06th & 09th October, 2025 MKUYE, J.A.: Before the District Court of Namtumbo at Namtumbo, the appellant Ally Said Sangu was arraigned for an offence of rape contrary to section 130 (1) (2) ( e) and 131 of the Penal Code [Cap 16 R.E. 2019]. It was alleged in the particulars of the offence that, the appellant, on 16th January 2021 at Kitanda village within Namtumbo District in Ruvuma Region, raped A d/o H, (name withheld to conceal her identify), a girl aged seven (7) years old.

The appellant pleaded not guilty to the charge which prompted the prosecution to call four witnesses to prove the charge and produced two exhibits. The brief facts of the matter leading to this appeal are that: On 16th January 2021, the victim's mother was at home. While her daughter PW2, the victim, was playing with her fellow children. Later, PW1 left leaving none at home. While on her move to cross the road, one Yasin called her and inquired from her whether the girl being raped was hers. Acting on that information, she went back and witnessed the appellant raping her daughter. On seeing PW1, the appellant released the victim. Luckily enough, at that particular time, a police officer (PW4) passed by. That is when PW1 called and reported to him about the incident. PW4 inspected the appellant and observed spermatozoa on both the appellant's and the victim's clothes. PW4 arrested the appellant and took him to the police station. His cautioned statement (exhibit P2) was recorded where he allegedly confessed to commit the offence but sought reconciliation. Meanwhile, as the matter was reported at the police station, the victim was issued with a PF3 (exhibit PI) and was taken to Kitanda Hospital. She was examined by PW3, a nurse who confirmed that the victim was raped

having lost her virginity and sperms and bruises in her vagina were observed. PW1 and PW2 identified the appellant to have raped the victim. In defence, the appellant denied the commission of the offence. He did not deny his presence in the village though he complained as to why they did not settle the matter as he was prepared to pay for a reconciliation at the village level. After a full trial, the appellant was found guilty, convicted and sentenced to thirty years imprisonment. Aggrieved by the conviction and sentence, he appealed to the High Court but his appeal was unsuccessful as the conviction was sustained and further the sentence was substituted to life imprisonment. Still protesting his innocence, the appellant has preferred the instant appeal fronting five grounds of appeal which for a reason to become apparent shortly, we shall not reproduce them. When the appeal was called on for hearing, the appellant appeared in person as he had no representation while the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney while assisted by Ms. Generosa Montano and Mr. Frank Chonja, both learned State Attorneys.

Onset, Mr. Chonja sought and leave was granted to him to address the Court on a point of law they had discovered in the course of their preparation for hearing of this appeal which touched the competency or propriety of the appeal at the High Court. He contended that upon perusal of the record of appeal, they observed that the notice of appeal against the decision of the District Court to the High Court was lodged out of time. He elaborated that, the judgment of the District Court was delivered on 4th August 2021. However, the notice of intention to appeal against that decision was lodged on 13th October 2022 which was almost after fourteen (14) months from the date of judgment. He pointed out that, according to section 361 (1) (a), now 382 (1) (a) of the Criminal Procedural Act, Cap 20 R.E. 2023 (the CPA), a notice of intention to appeal against the decision of the district court is required to be lodged within ten (10) days from the date of the decision. In this case, she submitted, he has been unable to glean if the appellant applied and obtained an extension of time to file the notice on that date. It was his argument that, in the absence of a valid notice of appeal the High Court could not have a jurisdiction to entertain the appeal that was before it. It therefore, heard the appeal which was incompetent for being time barred. This, he argued, rendered whatever was done by the High

Court, a nullity. He prayed, therefore, to the Court to nullify the proceedings and judgment of the High Court and let the appellant decide on whatever action he wants to take. In rejoinder, the appellant urged the Court to determine the appeal. The issue to be determined by this Court is whether the notice of intention to appeal against the decision of the District Court of Namtumbo in Criminal Case No. 9 of 2021 was lodged out of time. We have given a considerable thought over the submission of the learned State Attorney with regard to the propriety of the appeal that was before the High Court as well as its resultant proceedings and judgment. In essence, we are in agreement with him. The appeal before the High Court was incompetent as it was preceded with an invalid notice of intention to appeal for being lodged out of time. As was rightly submitted by Mr. Chonja, the notice of intention to appeal against the decision of the District Court delivered on 4th August 2021 was lodged on 13th October 2022, more than fourteen (14) months from the date of the decision. This was contrary to section 382 (1) (a) of the CPA which for clarity, we reproduce it as here under:

'382 (1) Subject to subsection (2), no appeal from any findingsentence or order referred to in section 359 shall be entertained unless the appellant: (a) has given notice o f his intention to appeal within ten days from the date o f the finding sentence or order or in the case o f a sentence o f corporal punishment only, within three days o f the date o f such sentence; and (b) .... n/a ..... " [Emphasis added] There is no question that, according to the above cited provision that where a party is aggrieved by the finding or order of the District Court, like in the matter at hand, he/she is required to lodge the notice of intention to appeal to the High Court within ten days of the date of the decision sought to be appealed against. In the matter at hand, the purported notice of appeal was lodged almost after fourteen months from the date of decision. It is unfortunate that the anomaly sailed through unnoticed at the High Court as the appeal thereof proceeded with the hearing to its determination though it was incompetent. In consequence, the omission rendered the appeal incompetent.

Next would be, what is the effect of such infraction. The answer is not far fetched. In the case of George Daudi v. Republic, [2019] TZCA 502 TANZLII, we grappled with almost a similar scenario and we had this to say: '7 /7 the present case, we are firm that the absence o f the notice in the High Court vitiated the appeal before that court and we declare that it was incompetent Therefore, the proceedings, judgment, conviction and sentence before that court were nullity ." We think, the principle enunciated in that case applies to the case at hand. Since the appeal before the High Court was incompetent for being time barred, there is no gainsaying that it rendered the proceedings and the resultant judgment a nullity. For that matter, it follows that, even the appeal before this Court is incompetent for having originated from a nullity. For the reasons of incompetency, we cannot entertain it. In this regard, we are constrained to 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. 42 of 2022, quash the decision which upheld the conviction and sentence imposed by the trial court. We further order that, the appellant, if he so

wishes, may process his appeal from the District Court of Namtumbo at Namtumbo to the High Court in accordance with the provisions of section 382 (1) (a) of the CPA. Ultimately, the appeal before us is hereby struck out for being incompetent. It is so ordered. DATED at SONGEA this 09th 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 09th day of September, 2025 in the presence of the Appellant in person, and Mr. Madundo Mhina, learned State Attorneys for the Respondent/Republic and M r. Elias Nkwabi, Court Clerk, is hereby