Michael Kyando vs Republic (Criminal Appeal 544 of 2020) [2023] TZCA 141 (27 March 2023)

Case summary

The case in question is a criminal appeal involving Michael Kyando, the appellant, and The Republic, the respondent. The appellant was initially charged with the crime of rape, as per sections 130 (1) (2) (e) and 131 of the Penal Code, Cap. 16 R.E. 2002 (Now R.E. 2022). The crime was allegedly committed on 23rd and 24th February, 2017, against a minor, a ten-year-old girl identified as MK.

The District Court of Mufindi at Mafinga found the appellant guilty and sentenced him to life imprisonment, along with an order to pay compensation to the victim amounting to TZS. 3,000,000.00. The appellant lodged a notice of appeal to Mufindi District Court and later filed his petition of appeal. However, the High Court of Tanzania at Iringa struck out the first appeal due to a reference to a non-existent District Court in the notice of appeal.

The appellant then filed an application for an extension of time to file a notice of appeal, which was granted by the High Court. However, the appellant lodged a petition of appeal without giving notice of his intention to appeal to the High Court. The High Court dismissed the appeal for lacking merit, leading to the current appeal.

The main issue for determination by the Court of Appeal was whether the appeal by the appellant before the High Court was proper. The respondent's representative argued that the appeal was incompetent due to the absence of a notice of intention to appeal, as required by section 361 (1) (a) of the Criminal Procedure Act, Cap. 20 R.E. 2022 (the CPA). The Court of Appeal agreed with this argument, stating that the absence of a notice of intention to appeal rendered the appeal before the High Court incompetent and the proceedings and orders made therefrom were a nullity.

The Court of Appeal invoked its revisional powers under section 4 (2) of the Appellate Jurisdiction Act, CAP. 141 R.E. 2019 (the AJA) to quash the proceedings of the High Court in DC. Criminal Appeal No 7 of 2020 and set aside the judgment made therefrom. The appellant was advised to apply for an extension of time to process the appeal in accordance with the law if he still wished to pursue his intended appeal before the High Court.

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