Amos Rafael Milanzi vs Republic (Criminal Appeal No. 666 of 2026) [2026] TZHC 2900 (3 June 2026)

1 THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY AT SONGEA CRIMINAL APPEAL NO. 666 OF 202 6 (Originating from Tunduru District Court in Criminal Case No. 11738 of 2025) AMOS RAFAEL MILANZI … ... … …… … .. ……....… …………… …….… APPELLANT VERSUS THE REPUBLIC ………………..........……… … …..…...……….………… RESPONDENT RULING 19 th May & 3 rd June , 2026 . KAWISHE, J.: The appellant was arraigned before the District Court of Tunduru charged with two counts viz, r ape contrary to section 13 0(1)(2) (e) and 131(3) and u nnatural offence contrary to section 154(1) (a) and (2) of the Penal Code [Cap 16 R.E 2023] . He was convicted in both counts and sentenced to serve life imprisonment. Dissatisfied with the conviction and sentence he preferred th is appeal with five grounds of appeal. I do not intend to reproduce the grounds herein on the reason to unfold soon.

2 When served with the petition of appeal, the Republic/Respondent challenged the appeal and filed preliminary point of objection. The prel iminary objection raised by the respondent is to the extent that: That, this instant appeal is incompetent before this Court for contravening section 382(1)(a) of the Criminal Procedure Act, [ Cap 20 R. E 2023 ] . As a matter of principle, when a preliminary point of objection is raised, it must be disposed prior to proceeding with the main case. As a result, t he preliminary objection was fixed for hearing on 19 th May, 202 6 . During the hearing, the respondent was represented by Mr. Elipidi Tarimo learned State Attorney assisted by Mr. Frank Sarwat, Ms. Esther Mfanyakazi, Ms. Lucia Bukuku, Mr. Issa Chiputula and Ms. Wande Hamis Kachima, learned State Attorneys while the appellant appeared in person unrepresented and fended for himself. The objection was argued o rally. Submitting in support of the preliminary objection, Mr. Tarimo argued that , the appeal is incompetent for contravening the provision of section 382(1)(a) of the Criminal Procedure Act [ Cap 20 R.E 2023 ] . He added that, the provision requires the ap pellant to file a notice of intention to appeal against the decision of t he trial court if the convict is not satisfied with the decision. He averred t hat, the impugned judgment was delivered by the

3 District Court of Tunduru on 15 th December, 2025. It was his view th a t , the appellant was supposed to file his notice of intention to appeal by 24 th December, 2025 in the District C ourt. Mr. Tarimo submitted that , in the documents served to the respondent , the notice was attached. That , the notice was dated 17 th December, 202 5 which was two days after delivery of the impugned judgment. The learned State Attorney continued to submit that , the appellant in the grounds of appeal explained the schedule of things he did from the date the impugned judgment was delivered to the time of filing the appeal but nothing stated about filing the notice . That , the appeal was filed in court on 7 th January, 2026 . He claimed that , according to the summons served to the respondent, the reference number shows that the appeal was registered in court on 9 th January, 2026 . He stressed that , there is n othing show ing when the appellant filed his notice of intention to appeal which was prepared on 17 th December, 2025. To support his stance, he cited the case of Joseph Pius Mushi @ Jose vs Republic, Criminal A pplication No. 57/01 of 2018 , where the Court of Appeal elaborated the requirement of show ing when the document was filed in court after preparation . To buttress his argument that documents prepared must be filed in time, he

4 relied on the case of Lusagula Machia vs Republic, Criminal Application No. 26/11 of 2017 . He claimed that , there is no proof that the notice was filed within time. That even the trial C ourt’s proceedings do not show that the appellant inform ed the trial C ourt of his intention to appeal. He insisted that , the notice of intention to appeal was filed out of the statutory time, that is ten days after delivery of the impugned judgment. He prayed for the appeal to be struck out for being incompetently filed without notice of intention to appeal . In reply, Mr. Amos the appellant stated that , he is a prisoner hence need ed assistance . That , he filed the appeal on time. He claimed that , he informed the trial C ourt of his intention to appeal. He added t hat , the trial magistrate asked him if he wished to appeal where he replied positively. That the honourable magistrate told him that a copy of the judgment would be ready by the evening of the same date . H e added th at, he was served wit h a copy of the same as promised by the trial magistrate . The appellant averred that, if the notice was not filed on time should have been the problem of the prison’s authority or the court’s system which experienced challenges. He continued to submit that , it may be the prisons

5 who delay ed the notice due to electricity issues as they are the ones who assist the inma tes. He prayed for his appeal to be accepted. In rejoinder, Mr. Tarimo submitted that , the appellant is trying to blame the prison ’ s authority without showing if the notice was filed within ten days. It was his further rejoinder that, the appellant ’ s claim that he informed the trial C ourt on 15 th December, 2025 that he wanted to appeal nowhere in the trial C ourt’s proceedings show the same. Mr. T ar imo added that, if the appellant could have told the trial C ourt what he cl aimed , then his notice would have been filed within time. He prayed for the a ppeal to be struck out. It was his view that, if the appellant so wishes may refile the appeal in accordance to the law. I have carefully and dispassionately followed the submissions for and against the preliminary objection. The court found out that the major issue to be answered is whether the notice of intention to appeal was filed within time. The respondent’s learned State Attorney claimed that the appeal i s incompetent for being filed without notice of intention to appeal. That the appeal contra vened the provision of section 382(1)(a) of the Criminal Procedure Act (supra) thus, deserves to be struck out. On his part, the

6 appellant claimed that, he notified the tri al C ourt of his intention to appeal. Also, he claimed that , if the notice was delayed , then it was due to challenges faced by the prison or the court’s system. It is a settled law that filing of the notice of intention to appeal is a statutory requirement. For easy of reference , I am at liberty to reproduce t he provision of section 382(1 )(a) of the Criminal Procedure Act (supra) which states as follows: “(1) Subject to subsection (2), an appeal from any finding, sentence or order referred to in section 380 shall not be entertained unless the appellant - (a) has given notice to the trial co urt of his intention to appeal within ten days from the date of the finding, sentence or order or, in the case of a sentence of corporal punishment only, within three days of the date of such sentence; and” [Emphasis added]. The provision of the law quoted is couched in a mandatory form. That , no appeal shall be entertained unless the appellant has issued a notice of intention to appeal within ten days from date of the impugned decision. Clearly, the notice of intention to appeal bestows the High Court with the jurisdiction to entertain an appeal. Accordingly, if the statutory notice of intention to appeal is not filed , the appeal becomes incompetent. Unfortunately, if the High Court shall proceed to entertain an appeal filed

7 without the notice then the decis ion and proceedings become nullity. This position was laid down by the Court of Appeal in the case of Julius s/o Said @ Mbaga vs Republic (Criminal Appeal No. 79 of 2013) [2 016] TZCA 715 (1 July 2016) where the Court had this to state: “ From the above cited provision of law, we are satisfied that the High Court had no jurisdiction to entertain the appellant’s appeal without there being a notice of intention to appeal duly gi ven in terms of section 361(1) of the CPA. ” Guided by the authority cited above, I am required to satisfy myself whether the notice of intention to appeal was filed and was within time. It was the learned State Attorney’s submission that , among the documen ts served to the respondent, the notice of intention to appeal was included but it was not filed in court within time. That from the summon s served to the respondent, the reference number of the appeal shows that the appeal was registered in court on 9 th January, 2026 while the impugned judgment was delivered on 15 th December, 2025. The appellant had a varying version of responses. First , he claimed to have informed the trial C ourt that , he intended to appeal. However, the trial C ourt’s proceedings do not depict his clai m. Second , he submitted that , if the notice was delayed then it was caused by the prison ’ s electricity challenge s

8 or the court’s system challenges. His reply shows clearly that , even the appellant is not sure if the notice of intention to appeal was filed with in the prescribed statutory period. From the antagonistic submission, I had to peruse the court’s e - file to be sure of the respondent’s learned State Attorney’s allegations. Upon perusal, I realized that the notice of intention to appeal and the peti tion of appeal were filed in court on 9 th January, 2026. Th ough the notice shows it was signed on 17 th December, 2025 two days after the delivery of the impugned judgment. T he same was n ever filed in court until 9 th Janu ary, 202 6 . Failure to file the notice of intention to appeal within the statutory time, st rips off this court’s jurisdiction to entertain the appeal. See the case of Haji Iddi Chando vs Republic (Criminal Appeal No. 67 of 2016) [2016] TZCA 2168 (30 June 2016) where the Court of Appeal held that: “ Since it is evident that the appellant did not give his notice of intention to appeal in terms of s ection 361(1)(a) of the CPA and did not seek, under subsection (2) of the same provision, for an extension of time within which to give such notice out of time, we are satisfied that the appellant’s purported appeal to the High Court was illegally entertai ned. In other words, there was in law, no valid appeal. ” According to the excerpt h erein above, where the appellant did not give his notice of intention to appeal his appeal becomes invalid. In the instant

9 matter, the appellant claimed to have given oral notice b ut it is not recorded in the proceedings of the trial C ourt. Even the written notice filed in the court’s system is dated 17 th December, 2025 the same was filed in court on 9 th January, 2026 meant it was filed out of time . The notice was legally required to be filed within ten days from the date the impugned judgment was delivered. Thus, the appellant was supposed to apply for extension of time to file his notice and the appeal out of time. This principle was emphasized by the Court of Appeal in the case of Renatus Kaguta vs Republic (Criminal Appeal No. 892 of 2023) [2025] TZCA 811 (6 August 2025) where the Court stated that: “In view of the above sequence, we are inclined to agree with Mr. Magige that, the appel lant’s appeal in Criminal Appeal No. 108 of 2022 in the High Court and later in RM. Criminal Appeal No. 24 of 2023 and i t s resultant proceedings being grounded on a notice of intention to appeal lodged on 7.3.2022 is a nullity. That is because, that notice was lodged after one year and 10 months from [ … ] the date the trial court’s decision, beyond the 10 days prescribed under section 361(1)(a) of the CPA.” Banking on the excerpt above, the fact that the appellant’s notice was filed in court on 9 th January, 2026 while the impugned judgment was delivered on 15 th December, 2025 the not ice was delayed for 26 days . There is nothing to prove that the appellant issued oral notice of his intention to file

10 appeal before the trial C ourt . In addition, fil i ng the n otice out of time wh ich contraven ed the provision of section 382(1)(a) of the Criminal Procedure Act (supra). Accordingly, the issue raised is answered in the negative. From the foregoing discussion, this court found th at the notice of intention to appeal was filed out of the prescrib ed statutory period. Consequently, the appeal is incompetent before the court as there is no notice of intention to appeal was filed with in time. As a result, the preliminary point of objection is sustained. The appeal is hereby struck out for being incomp etently filed without notice of intention to appeal. If the appellant so wishes, may file application for extension of time within which to file the notice of intention to appeal and the appeal out of time. It is so ordered. DATED and DELIVERED at SONGEA this 3 rd day of June , 2026. E. L. KAWISHE JUDGE

11 COURT: Ruling delivered virtually in the presence of Mr. Elip i di Tarimo learned State At to rney for the respondent in Songea and the appellant Mr. A mos Raphael Milanzi in Tund ur u Prison . E. L. KAWISHE JUDGE 03 /0 6 /2026