Andrea Thobias vs Republic (Criminal Appeal No. 590 of 2023) [2025] TZCA 826 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: WAMBALI, J.A.. MGONYA. J.A. And FELESHI. J.A/) CRIMINAL APPEAL NO. 590 OF 2023 ANDREA THOBIAS APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) 22n dJuly & 7th August, 2025 WAMBALI. J.A.: The appellant, Andrea Thobias appeared before the District Court of Chato in Criminal Case No. 38 of 2021 where he was confronted with two (2)(e) of the Penal Code, Cap 16, and two, impregnating a school girl contrary to section 60A (3) of the Education Act, Cap 353 as amended by section 22 of the Written Laws (Miscellaneous Amendments) Act, No. 2 of 2016. It was alleged in the respective particulars of the charges that the appellant committed the said offences on diverse dates between (Kamana, J.^ Dated the 7thday of July, 2023 in Criminal Appeal No. 107 of 2022 JUDGMENT OF THE COURT counts. One, rape o f^ g iri aged 11 ears contrary to section 130 (1)

November, 2020 and February, 2021 at Kibehe Village within Chato District in Geita Region. To prove the allegations, the prosecution paraded three witnesses, including a girl who we shall, in this judgment, refer to as the victim or PW1, Juma Marco (PW2) and Hardson Naricis (PW3). In addition, the PF3 was tendered and admitted as exhibit PI. Basically, PW1 and PW2 emphasised through their testimonies that, the appellant was fully responsible for committing the offences charged on the alleged diverse dates. On the other hand, PW3, a doctor at Muganza Health Centre confirmed that the medical examination revealed the victim was pregnant for about three months. After the prosecution closed its case, the trial magistrate found the appellant with no case to answer in respect of the count of impregnating a school girl. However, he found him with a case to answer in respect of allegation of the offence of rape. He therefore required him to defend against the allegation. The appellant denied the allegation and asserted that the prosecution did not prove the case of rape against him to the required standard.

Nonetheless, at the climax of the trial, the trial magistrate found him guilty of the offence of rape, convicted and imposed a sentence of thirty years imprisonment. Subsequently, the appellant preferred Criminal Appeal No. 153 of 2021 before the High Court of Tanzania at Mwanza. However, the said appeal was transferred to the Court of Resident Magistrate of Geita exercising extended jurisdiction. It was registered as RM Criminal Appeal No. 2 of 2022 and was presided over by Waane, Principal Resident Magistrate (PRM) with extended Jurisdiction. Unfortunately, the appeal was not heard on merit as it was struck out for being incompetent. According to the record of appeal, the appellant subsequently lodged the notice of appeal followed by the petition of appeal at the High Court. Consequently, the appeal was registered as Criminal Appeal No, 107 of 2022 and was later determined at the same court by Kamana, J, whose decision is the subject of the instant appeal. At the hearing of the appeal, it transpired that though the appellant lodged a fresh notice of appeal and petition of appeal subsequently after RM Criminal Appeal No. 2 of 2022 was struck out by Waane (PRM. Ext, Jur.), he did not apply for extension of time as required under section 361 (2) of the Criminal Procedure Act, Cap 20 (the CPA). It is noted that in

terms of section 361 (1) of the CPA Act, the notice of intention to appeal and petition of appeal are supposed to be preferred within ten and forty five days, respectively after the date of the decision of the trial court. In this regard, the pertinent question before us is whether the appeal before the High Court, whose decision is the subject of the instant appeal was competent. It is for this reason that we have found no necessity to neither revisit the evidence of the parties on the record nor reproduce the grounds of appeal presented by the appellant before us in this appeal. r It is noteworthy that, when the appellant was afforded an opportunity to explain the omission, he readily conceded that he did not apply for extension of time within which to lodge a notice of intention to appeal and petition of appeal after the previous appeal was struck out by Waane, PRM Ext. Jur. He contended that, he was not aware that he had to apply for extension of time as he thought that he had impliedly been authorised to file a fresh notice of appeal after he had rectified the defects pointed out by the then first appellate court. He thus urged the Court to find that the appeal was properly before the High Court and currently before this Court and determine it on merit, though he did not apply for extension of time as required by the law. \

On the other side, Mr. Robert Magige, learned Senior State Attorney assisted by Mr. Mussa Hamis Mlawa, learned State Attorney, appeared for the respondent Republic. In response to the issue of the competence of the appellant's appeal before the High Court, Mr. Magige submitted that the appeal was time barred. He explained that according to the record of appeal, after the previous appeal was struck out by the then first appellate court, the appellant did not apply to lodge a notice of appeal and petition of appeal out of time as required under section 361 (2) of the CPA as he readily admitted. In this regard, he argued that the High Court had no jurisdiction to determine the appeal which was before it as it was time barred. In the circumstances, he submitted, the proceedings before the High Court in respect of Criminal Appeal No. 107 of 2022 are a nullity and therefore, no appeal may lie to this Court. In the event, Mr. Magige urged the Court to nullify the proceedings of the High Court and if the appellant is interested, he may follow the laid down procedure to appeal against the decision of the trial court. We deem it appropriate to start our deliberation by revisiting the relevant provision in respect of criminal appeals emanating from subordinate courts to the High Court. To this end, section 361 (1) and (2) of the CPA provides:

"361 (1) Subject to subsection (2), no appeal from any finding, sentence 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 punishm ent only, within three days o f the date o f such sentence. b) has lodged a petition o f appeal within forty five days from the date o f the finding, sentence or order. Save that in computing the period o f forty five days the time required for obtaining a copy o f the proceedings, judgm ent or order appealed against shall be excluded. (2) The High Court may, for good cause, adm it an appeal notwithstanding that the period o f lim itation prescribed in this section has elapsed . " From the provisions of section 361 (1) (a) and (b) of the CPA, the jurisdiction of the High Court to entertain a criminal appeal from subordinate courts is subject to the appellant giving a notice of appeal intention to and petition of appeal within ten and forty five days, respectively of the date of the decision.

It is acknowledged that according to the record of appeal, soon after the decision of the trial court, the appellant lodged a notice of appeal and petition of appeal within the prescribed time. However, as intimated above, the said appeal was struck out for being incompetent and the appellant was directed to follow the procedure laid by the law to file a fresh appeal. Nevertheless, as readily admitted by the appellant, he directly lodged another notice of intention to appeal before the High Court hardly three days after the decision of the then first appellate court without applying for extension of time in terms of section 361 (2) of the CPA. He also lodged a petition of appeal. In Nyandwi Buduma v. The Republic, Criminal Appeal No. 294 of 2010 (unreported), the Court stated that: "Section 361 (2) o f the CPA, Cap 20 gives the High Court o f Tanzania the discretion to extend the period for filin g an appeal or notice o f intention to appeal upon the applicant showing good cause ." In the circumstances of the case at hand, we are settled that, following the striking out of the appeal due to the defects identified by the then first appellate court, the parties were restored to the position they were in prior to the filing of the appeal. Consequently, the time for lodging a fresh appeal began to run from the date of the decision of the trial court.

Therefore, the appellant was required to apply for an extension of time within which to file a notice of intention to appeal and petition of appeal against the decision of the trial court after the striking out of his first appeal, RM that is Criminal Appeal No. 2 of 2022. Thus, as the notice of intention to appeal was lodged without compliance to section 361 (2) of the CPA, it was incompetent. Indeed, it rendered both the petition of appeal and the entire Criminal Appeal No. 107 of 2022 incompetent for being preferred after the expiration of the period prescribed under section 361 (1) (a) and (b) of the CPA. In this regard, the High Court had no jurisdiction to determine the appeal in which no extension of time had been sought and obtained. Consequently, the proceedings in respect of that appeal are a nullity. The argument of the appellant that he was authorised by the then first appellate court to file a fresh notice of intention to appeal after rectifying the noted defects is not supported by the record of appeal as it was ordered that he should follow the law. Besides, the then first appellate court could not had on its own motion extended the time without paying regard to section 361 (2) of the CPA. In the circumstances, we nullify the proceedings in respect of Criminal Appeal No. 107 of 2022 for being a nullity. In the result, the

decision of the trial court in Criminal Case No. 38 of 2021 remains intact subject to the outcome of a proper appeal before the High Court. DATED at MWANZA this 7th day of August, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI . JUSTICE OF APPEAL The Judgment delivered this 7th day of August, 2025 in the presence of the appellant in person unrepresented and Ms. Magreth Mwaseba, learned Principal State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.