Hemed Seif vs Republic (Criminal Appeal No. 846 of 2023) [2025] TZCA 986 (12 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: WAMBALI. J.A., KENTE. 3.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO. 846 OF 2023 HEMED SEIF................................................ .......... .................APPELLANT VERSUS THE REPUBLIC ........................ ........................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) (Masabo. 3.) dated the 13th day of August 2016 in Criminal Appeal No. 229 of 2019 JUDGMENT OF THE COURT 21st March & 12th September, 2025 KENTE. J.A.: The appellant Hemed Self, appeared before the District Court of Mafia at Mafia (the trial court) on a charge of rape contrary to sections 130 (1) (2) (b) and 131 (1) of the Penal Code, Cap 16, R.E, 2002. The particulars of the offence alleged that, at about 07:00 hrs on the 2n d day of December, 2015 at Miburani area in Miburani Village within Mafia District in the Coast Region, the appellant had unlawful carnal knowledge of a girl aged twelve years whose name we shall hereinafter not reveal but simply refer to as either the victim or PW2. The record of appeal shows that, after the charge was read over and explained to him, the appellant pleaded not guilty whereupon the matter proceeded to trial.

For the reasons that will take us into the competency of the appeal before the High Court and subsequently before us, we will not delve into the summary of evidence that was adduced on behalf of the prosecution and defence side. Suffice it to say that, having considered the evidence on both sides, the learned trial magistrate accepted the prosecution version. He was convinced in the first place that, the victim was aged 12 years at the time and in the second place, the trial Magistrate was satisfied that, the offence against her was committed by none other than the appellant. On the basis of the totality of the evidence, the trial court went on convicting the appellant as charged and sentencing him to the mandatory thirty year's imprisonment which appear not to have gone down well with him. Accordingly, embittered with the conviction and the custodial sentence imposed on him by the trial court, the appellant vainly appealed to the High Court, hence the present appeal in which he has raised four grounds of complaint. Nevertheless, for the reasons which we will address in more details in the immediately following part of this judgment, we will not go into the specific grounds of appeal as raised by the appellant. Going by the record of appeal, it is clear that the appellant had his appeal to the High Court (Criminal Appeal No. 120 of 2016) struck out (by Mwandambo, J. as he then was) because of the undisputed absence of a 2

notice of appeal that was necessary to initiate the appeal process as required by section 361 of the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA). Needless to say, such a decision striking out the appeal from the Register of the High Court for being incompetent, would require the appellant who was hell-bent on appealing the decision of the trial court to initiate the appeal process once again. As it turned out however, subsequent to the High Court order striking out the appeal which was handed down on 3rdJuly 2017, the appellant went on launching another appeal (Criminal Appeal No. 360 of 2018), apparently out of time and, once more, without the requisite notice of appeal. Moreover, the record shows that, having gone through the judgment of the trial court and found that the appellant was not formally convicted by the trial court, the then presiding Judge of the first appellate court (Ngwala, J. as she then was), went on holding that there was no appeal properly so called before the court. She accordingly remitted the case file to the trial court with instructions that it should formally convict the appellant of the offence with which he stood charged after which the appellant would be at liberty to appeal. It would appear that the High Court order was dully complied with resulting into another appeal (Criminal Appeal No. 229 of 2019) the decision of which is the subject of the present appeal. 3

When we drew the attention of the parties to the fact that in all these instances, the appellant's appeals to the High Court were entertained without the required notice of appeal and asked them to comment on this procedural anomaly, Ms. Gladness Mchami, learned Senior State Attorney who, together with Ms. Amina Macha, learned State Attorney advocated for the respondent Republic, submitted very briefly that, in the absence of a notice of appeal duly filed in court to initiate the appeal process, the High Court could not have validly heard and determined the appeals filed by the appellant which were registered as Criminal Appeal No. 120 of 2016 and later on Criminal Appeal No. 360 of 2018. That being the case, the learned Senior State Attorney implored us to nullify the proceedings of the first appellate court and set aside the resultant orders. Apparently not being certain of the course we should take thereafter, the learned Senior State Attorney urged us to provide our guidance on that area. For his part, the appellant who appeared in person without any legal representation and chose to hear the respondent's counsel's submissions in reply before he could make any rejoinder, had nothing meaningful to say. He only maintained his resolve to protest his innocence saying that, he was wrongly convicted and sentenced by the trial court and that, his appeal to the first appellate court was undeservedly dismissed. 4

As we see it, since it is evident from the record of appeal that there is no notice of appeal that was filed in court to initiate the appeal before the High Court, the position taken by the learned Senior State Attorney, is legally unassailable and we entirely agree with her. For, in the absence of a notice of appeal duly filed in court, the High Court could not clothe itself with, and indeed, it had no jurisdiction to hear and determine the appellant's complaints against the decision of the trial court. The overriding point to be made in this context, is that, an appellate court generally cannot hear an appeal without a notice of appeal. This stems from the fact that, a notice of appeal is a very fundamental procedural requirement that initiates the appeal process and establishes the appellate court's jurisdiction to review the lower court's decision. Put in other words, without a notice of appeal, the appellate court lacks the necessary authority to act and the appeal would be incompetent. Essentially, the above discourse forms the core to this and the already established precedents. [See the case of Alberto Mtega v. Republic (Criminal Appeal No. 545 of 2020) [2023] TZCA 142 (27 March 2023, TANZLII)]. Being mindful that, a notice of appeal is a mandatory prerequisite to initiate the appeal and for an appellate court to have jurisdiction over an appeal, it is worth of note that, in the case of Joseph Lugala v. 5

Republic (Criminal Appeal No. 512 of 2020) [2023] TZCA 130 (21 March 2023, TANZLII)], we stated that: "Failure o f the appellant to lodge the notice of appeal, rendered the appeal before the High Court incompetent because the omission offended the provisions of section 361 (1) (a) of the CPA". In this connection, it must be very elementary to observe that, a court generally cannot entertain an appeal that fails to meet the mandatory legal requirements such as a flawed or non-filing of a notice of appeal that renders the entire appeal incompetent. With regard to the way forward in such circumstances, we guided in the case of Joseph Lugala (supra) that: "...since the appellant's appeal at the High Court was incompetent, it had to be struck out so that he would have approached the same court to seek extension of time in terms of section 361 (2) of the CPA to lodge the notice of appeal and present the appeal if he was still interested to appeal against the decision of the trial court'. Reverting to the present case and, taking into account the fact that, one could be tempted to think and probably argue that perhaps, upon conviction and sentence, the appellant had prepared the notice of appeal and handed it over to the prison officers for filing it in court, and further 6

that, it may be that, the prison officers had inadvertently misplaced it, a situation for which"the appellant would be exceedingly excusable bearing in mind that such instances have occurred so more often than not, we need to emphasize here that, the law is settled. That is to say, in a situation like this, the duty is always on the appellant to show that he or she had indeed handed over the notice of intention to appeal to the prison authorities. The akin and nearest equivalent case of Hussein Ramadhan Beka v. Republic, Criminal Appeal No. 349 of 2016 [2020] TZCA 179 (27th March 2020, TANZLII), is very informative and instructive on this point. Without proof that the appellant had initiated an appeal by filing a notice of appeal, the High Court cannot be considered to have had jurisdiction. All said and done, we find ourselves in agreement with Ms. Mchami that, indeed in the circumstances of this case, the High Court could not have validly heard and determined the correctness or otherwise of the trial court's decision in the absence of a notice of appeal duly filed in court to initiate the appeal. In these circumstances, we hold without demur that, the purported appeal to the High Court was incompetent. In exercise of our revisional powers, we revise and nullify the proceedings of the High Court in Criminal Appeal No. 360 of 2018. Consequently, we step into the shoes of the High Court and strike out the

appeal that was filed by the appellant in the High Court for being incompetent on account of the reasons given above. In the ultimate event, we leave it in the discretion of the appellant to seek an extension of time within which to lodge a notice of appeal and subsequently to appeal to the High Court, if he is still desirous of challenging the decision of the trial court. DATED at DODOMA this 9thday of September, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered virtually this 12th day of September, 2025 in the presence of appellant in person and Ms. Gladness Mchami, learned Senior State Attorney for the Respondent/Republic and Ms. Hilda Mcharo, Court Clerk, is hereby certified as a true copy of the original.