Alisted Khamsini vs Republic (Criminal Appeal No. 132 of 2014) [2014] TZCA 2326 (21 May 2014)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: OTHMAN, C.J.,RUTAKANGWA,J.A., And MANDIA,J.A. ) CRIMINAL APPEAL NO. 132 OF 2014 ALISTED KHAMSINI •••••.••••.••••.••••••••••.••••..••••••••••.•••••••••••..••••••••••• APPELLANT VERSUS THE REPUBLIC ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Sumbawanga) 19 th & 22 nd May, 2014 OTHMAN, C.J.: (Khaday, J.) dated the 19 th day of February, 2010 in DC. Criminal Appeal No. 11 of 2009 RULING OF THE COURT When the appeal was called on to a hearing, the Court raised a question, suo motu, whether or not the appellant's appeal before it was competent in terms of Rule 68(1),(2) and (7) of the Court of Appeal Rules, 2009. The appellant, who fended for himself conceded that his notice of appeal had shortcomings. However, he pleaded that as a notice of appeal is a matter of law and as a lay person he entirely depended on Prison 1

authorities and the High Court Registry at Sumbawanga in order to institute a proper appeal, the Court should use its authority to grant him an extention of time, within which to file a proper notice of appeal. On his part, Mr. Edwin Kakolaki, learned Principal State Attorney for the respondent Republic submitted that the notice of appeal was incurably defective for' not specifying the correct decision of the High Court against which the appellant desires to appeal. That it was also deficient in that it did not specify whether the appellant is appearing against his conviction or sentence or both. It was not sufficient, he urged, for the appellant to have mentioned in the notice of appeal that he is appealing against the "whole decision". He relied on The Director of Public Prosecutions v. ACP Abdallah Zombe and Others, Criminal Appeal No. 254 of 2009 (CAT, unreported). In our respective view, there ought to be no argument that under Rule 68(1) of the Court of Appeal Rules, 2009 it is the notice of appear which institutes a criminal appeal. First, on the face of the notice of appeal, ~ the appellant incorrectly states that he is appealing from the decision of the High Court in "Criminal Session No. 11 of 200g': The relevant and proper decision that sustained on appeal, his conviction and sentence is 2

D.C. Criminal Appeal No 11 of 2009, whose Judgment (Khaday, J.) was rendered by the High Court on 19/02/2010 and which originated from Criminal Case No 129 of 2009 of the District Court of Mpanda. For clarity, it should be noted that a Criminal Session case is heard and determined by the High Court in its original jurisdiction, while the case which is of direct interest to the appellant is one which was determined by the High Court in its appellate jurisdiction. The decision cited by the appellant therefore is neither applicable nor relevant and accordingly the notice of appeal offends· Rule 68(1). Second, the impugned notice of appeal runs counter to Rule68(2) by not expressing therein whether he intends to appeal against his conviction or conviction and sentence or sentence only. Third, by completely omitting the preambular part of FORM B in the First Schedule to the Rules and all the above, the impugned notice of appeal is not substantially in FORM B of the above Schedule as required under Rule 68(7). We would readily agree with Mr. Kakolaki that the purported notice of appeal is fatally defective and renders the purported appeal incompetent. We accordingly strike it out. 3

The outcome of it all is that there is nothing before the Court to enable it to even remotely heed to the appellant's oral application for a grant of an extention of time within which to file a correct notice of appeal. However, he is not without a remedy. The course open to the appellant if he desires to pursue any intended appeal from DC Criminal Appeal No. 11 of 2009 is to seek from the High Court an extention of time within which to file a proper appeal according to the law. Ordered accordingly . . DATED at MBEYA this 21 st day of May, 2014. M.C. OTHMAN CHIEF JUSTICE E.M.K. RUTAKANGWA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. F. J. KABWE DEPUTY REGISTRAR COURT OF APPEAL 4