Maselo Nyakinyi vs Republic (Criminal Appeal No. 221 of 2012) [2014] TZCA 2290 (31 July 2014)

•'- ____ IN THE COURT OF APPEAL OF TANZANIA AT MWANZA - (CORAM: KIMARO, ).A., MANDIA, J.A. And MMILLA, 1A.) CRIMINAL APPEAL NO. 221 OF 2012 MASELON'Y'AKIN'Y'I ...................................................................... APPELLANT VERSUS THEREPUBLIC.......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mwakinesile, 3.) dated the 19th day of September, 2012 in Criminal Session Case No. 56 of 2012 RULING OF THE COURT 22' July & 5th August, 2014 MANDIA, J.A.: The appellant appeared in the District Court of Bunda at Bunda on a charge of Robbery with violence where he was convicted and sentenced to thirty years imprisonment. He was aggrieved by the conviction and sentence and he preferred an appeal to the High Court of Tanzania at Mwanza where his appeal was dismissed. Further aggrieved, he preferred an appeEd if i this Court I

, J.

In the Notice of Appeal which the appellant appropriately lodged in the High Court of Tanzania at Mwanza on 21st September, 2012, the appellant intimated that he was lodging an appeal against the conviction and sentence in the judgment of the High Court of Tanzania presided over by Hon. Mwakipesile, 3. in Criminal Appeal No. 56 of 2012. At the hearing of this appeal, the appellant appeared in person, unrepresented, while the respondent Republic was represented by Mr. Castuce Ndamugoba, learned State Attorney. The learned State Attorney drew the attention of the Court to the fact that what was scheduled for hearing was an appeal against the judgment of the High Court in Criminal Appeal No. 156 of 2008 which was presided over by Madam Justice G. K. Mwakipesile, and not Criminal Appeal No. 56 of 2012. The Court noted the defects pointed out by the learned State Attorney which show that the • number of the High COini criminal appeal cited is wrong, and the date and • year of the appeal cited are also wrong. The learned State Attorney therefore urged us to find that the appeal before us is incompetent for offending Rule 68.(2) of the Court of Appeal Rules, 2009, and that the appeal 2

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• ,. -. should be struck out. The appellant was given an opportunity, to respond to the obseivations made by the learned State Attorney. He told the Court that he lodged a properly cited appeal and does not understand why the Court record contains a wrongly cited notice of appeal. To impress the Court of the validity of his argument, the appellant produced a notice of appeal which was a copy of the notice lodged in the Court record. The copy has the number of the appeal shown as 156 but with a difference that the numeral one appears in different ink from the numerals five and six, which shows that the numeral one has been added postscript. Let alone that, in the copy which the appellant showed the Court the year still shows as 2012 instead of 2008 which is the correct year. The Court took the copy which the appellant showed the Court to be a clumsy forgery. As rightly pointed out by Mr. Castuce Ndamugoba, under Rule 68(1) of the Court of Appeal Rules, • • 2009, it is a Notice of Appeal which - institutes an appeal, so in the abse'hce, of,a valid notice an appeal becomes incompetent. We agree with him. In line with AIexWilfred versus The Republic, Criminal Appeal No. 390 of 2013 (unrepurted) and Mateso s/o Boniphace versus The Repubk, -S

4 Criminal Appeal No. 440"B" of 2013, we find the appeal before us incompetent and strike it out. DATED at MWANZA this 31 11 day of July, 2014. N. P. KIMARO JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL B. M. K. MMILLA JUSTICE OFAPPEAL I certify that this is a true copy of the original. (RA F WE J-i DEPUTY REGISTRAR COURT OF APPEAL

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