Vitus Simon Nchimbi vs Republic (Criminal Appeal No. 213 of 2023) [2025] TZCA 1111 (15 September 2025)

AT SONGEA (CORAM: MKUYE, J.A., MASOUD. J.A. And ISMAIL, 3.A.) CRIMINAL APPEAL NO. 213 OF 2023 VITUS SIMON NCHIMBI.................................................................... APPELLANT VERSUS THE REPUBLIC..............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Luvanda, I.} dated the 17th day of March, 2023 in Criminal Appeal No. 2 of 2023 JUDGMENT OF THE COURT 08th & 15th October, 2025 MKUYE, J.A,: The appellant, Vitus Simon Nchimbi was charged and convicted before the District Court of Namtumbo at Namtumbo for unnatural offence contrary to section 154 (1) (a) of the Penal Code, Cap 16 R.E. 2019 (now R.E. 2023) (the Penal Code). It was alleged in the particulars of offence that, on 22n d of August 2022, at Namtumbo Police Station within Namtumbo District in Ruvuma Region, the appellant did have carnal knowledge of Frank Florin Ntanga, (the

victim) (PW1), against the order of nature. In order to prove the charge, the prosecution presented four (4) witnesses while the appellant fended himself. At the conclusion of the trial, the trial court was satisfied that the prosecution proved the case beyond reasonable doubt. It therefore, convicted the appellant and sentenced him to thirty years imprisonment. His appeal to the High Court was not successful. He has now brought this appeal to this Court. Before we embark on the determination of the appeal on merit, we wish to give a brief background of the matter as follows: On 22n d August 2022 the appellant was together with eight other suspects, the victim inclusive, in a lock up of Namtumbo Police Station. At about 5:00 a.m., the appellant started pronouncing himself as a leader (Nyapala) of the lock up claiming that he was in custody for a murder case. He then tried to solicit sexual intercourse against the order of nature to PW2 but he declined. Then, he approached PW1 to whom he forced to remove his clothes and eventually he inserted his manhood into PW l's anus after having grabbed his neck to prevent him from shouting. Later, a police officer, No. H 8106 PC Abubakari (PW4) heard an alarm seeking for assistance. This prompted him to enter into the lock up and found

the victim crying complaining about the appellant having forcibly sodomized him while attempting to do the same to others including PW2. PW4 decided to separate the suspects by taking the other suspects to another room while leaving the appellant alone in that room. He also made arrangement of transport which took the victim to the Health Centre where he was examined by a clinical officer (PW3). In his examination, he observed injuries inside the victim's anus but no spermatozoa were found. In his defence, the appellant admitted to being in Namtumbo Police lock up with PW1 and PW2 on the material date. However, he denied to have had carnal knowledge against the order of nature to the victim. He claimed that, the accusation was a frame up by other suspects in custody against him so that he does not get food. The appellant has now preferred the instant appeal on two grounds of appeal which for a reason which will be apparent shortly, we will not reproduce them. At the hearing of the appeal, the appellant appeared in person without any representation whereas the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney teaming up with Mr. Frank Chonja, learned State Attorney.

Before commencing with the hearing of the appeal in earnest, we required the parties to address us on the competency of the appeal, particularly on whether the appeal before the High Court had been preceded with a notice of intention to appeal. Mr. Chonja submitted that, according to the record of appeal, it is uncertain whether there was a notice of intention of appeal lodged in court. In elaboration, he contended that, the record of appeal at page 53, shows that on 8th February 2023, the date when the case was called on for mention, learned State Attorney, Mr. Venance Mkonongo, prayed to be supplied with a notice of intention to appeal as they were yet to be supplied. He added that, yet, on 22n d February 2023, when the matter came up for mention again, the same learned State Attorney reminded the court that they were yet to be supplied with the same. According to Mr. Chonja, this is an indication that the notice of intention to appeal was not filed as it could have been in the record of appeal. He was of a view that, since section 382 (1) (a) of the CPA requires the notice of intention to appeal to be filed in court within ten (10) days of the decision and the appellant failed to do so, the High Court heard the purported appeal without having been properly moved. The effect of this infraction, he argued, is that whatever was heard and determined by the

High Court was a nullity. On that account, he invited the Court to invoke its revisional powers and nullify the proceedings and judgment of the High Court and that the appellant be advised to proceed, if he so wishes, in accordance with the law. In rejoinder, the appellant in a way conceded that there was no notice of intention to appeal against the decision of the District Court of Namtumbo at Namtumbo. However, he argued that his appeal was processed by the admission officer as he was at Dodoma for medication and thus, he did not know what transpired thereafter. Gathering from the submissions made by either side, we think, the task before us is to determine whether the appeal which was heard and determined by the High Court was preceded by a notice of intention to appeal. The law governing notice of appeal against the decisions of subordinate courts is section 361 (1) (a) now 382 (1) (a) of the Criminal Procedure Act, Cap 20 R.E. 2023 (the CPA). The said provision, requires a notice of intention to appeal to be filed within ten days from the date of the finding, sentence or order to be challenged.

Having perused the record of appeal, we are in agreement with the learned State Attorney that there is no notice of intention to appeal which was validly lodged in the High Court. What is clear from the record of appeal, as was rightly submitted by Mr. Chonja, is that on 8th February 2023, the date when the case was called on for mention (page 53 of the record of appeal), Mr. Venance Mkonongo, learned State Attorney brought to the attention of the High Court that they were yet to be availed with a copy of notice of intention to appeal and the charge sheet. For ease reference, we reproduce what transpired here under: "The m atter is for mention. Nevertheless we have not been supplied with a notice o f intention to appeal and charge sheet We pray to be supplied and the date o f hearing." Then, the Court remarked that, they were still waiting for the lower court's record. Thereafter, the court made an order for mention on 22n d February 2023 at 09:00 am. The record further reveals that, when the matter was called on for mention on 22n d February 2023, the same learned State Attorney reminded the court that, they were yet to be supplied with the notice of intention to appeal. For clarity, we take the liberty to reproduce what the learned State Attorney stated:

"The m atter is fo r mention. Last time we asked for a notice o f intention to appeal and charge sheet We are not supplied." According to the record of appeal, what followed was for the matter to be fixed to come up for hearing on 28th February 2023 and eventually the appeal was heard and determined. As it is, there was no order of the High Court requiring the respondent Republic to be supplied with the said notice. Also, there was no notice of intention to appeal that was availed to the respondent as sought. Neither is it gleaned in the record of appeal much as there is a petition of appeal which guided the appeal which was heard and determined by the High Court. This infraction, offended the provision of section 361 (1) (a) now 382 (1) (a) of the CPA which prohibits an appeal from any finding, sentence or order to be entertained at the High Court unless the appellant gave notice of his intention to appeal within ten days from the date of the finding, sentence or order sought to be challenged. It is unfortunate that the first appellate court, proceeded to entertain and determine the appeal on its merit despite the fact that it was incompetent for lack of notice of intention to appeal. In the case of Joseph Lugala v. Republic, [2023] TZCA 130 when the Court was faced with akin

scenario, it was stated that failure by the appellant to lodge the notice of appeal rendered the appeal before the first appellate court incompetent because the omission offended the provisions of section 361 (1) (a) now 382 (1) (a) of the CPA. As to the effect of such anomaly, the Court in the case of George Daudi v. Republic, [2019] TZCA 502 TANZLII, observed that: 7/7 the present case, we are firm that the absence o f the notice o f appeal in the High Court vitiated the appeai before that court, and we declare that it was incom petent Therefore, the proceedings, judgm ent, conviction and sentence before that court were a n u llity." This is exactly what happened in the instant matter. The High Court entertained the appeal which was incompetent for want of a notice of intention to appeal. As it was held in the case of George Daudi (supra), the absence of the notice of intention to appeal in the High Court vitiated the appeal thereof as it was incompetent before that court. The effect of such anomaly is that the proceedings, judgment and resultant orders were a nullity. In this regard, we agree with Mr. Chonja's invitation to nullify the proceedings of the High Court and, therefore, in terms of the provisions of 8

section 6 (2) of the AJA, we revise and nullify the proceedings of the High Court and judgment resulting from an incompetent appeal in Criminal Appeal No. 2 of 2023. We further quash the judgment and set aside any order which resulted therefrom. We also direct that the appellant may, if he so wishes, process his appeal in accordance with section 382 (2) of the CPA. In consequential, we strike out the appeal before us for being incompetent. DATED at SONGEA this 13th day of October, 2025. Judgment delivered this 15th day of September, 2025 in the presence of the Appellant in person, Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL