20161215 TZHC Dar es Salaam1

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 152 OF 2016 ALEX KIYO LA ............................................ APPELLANT

VERSUS THE REPUBLIC ....................................... RESPONDENT Date of last order 2Sh November, 2016 Date of Judgment 1gh December, 2016

JUDGMENT KITUSI, l. Before the District court of Temeke at Temeke, in Dar es Salaam, Alex Kiyola, to whom I shall here after refer as the appellant, was charged with two counts under the Penal Code, Cap 16 R.E 2002. The first was Disobedience of Lawful Order contrary to Section 124 and another was Criminal Trespass Contrary to section 299 (a). It was alleged in relation to the first count that on 21 st day of May, 2014 within Temeke District in Dar es Salaam Region, the appellant disobeyed an order of Mziray, J dated 23 rd August,2010 which required him to give vacant possession of a house No TMK/MA/419 Temeke Maganga area, the property of one Twaha Said Masawe. In the second count, it alleged that on the same date, at the same 1 time and place, the appellant unlawfully entered into the house mentioned in the first count. The appellant pleaded not guilty to the charges, whereupon the prosecution called Twaha Said Masawe (PWl), Corporal Godson (PW2) and Detective Sergeant Adeladius (PW3) to prove the case against him. The appellant did not make his defence because the record shows that he defaulted appearance, such that the testimonies of PW2 and PW3 were taken in his absence. At the end of the day the District Court found the appellant guilty and convicted him of both counts. He was sentenced to 2 years imprisonment for each count, the same to be served consecutively. The

appellant was aggrieved by both the convictions sentences, and he has appealed hereto by a five ground Memorandum o Appeal. The appellant was represented both at the trial and before this court. Before this court the appellant was represented by Mr Adrian Mhina learned advocate, as the respondent Republic was represented by Mr. Katuri, learned Senior State Attorney. On the date of the hearing of the appeal, Mh. Mhina who had just been instructed, chose to abandon some of the grounds of appeal and/or amend them. There are, consequently, three grounds for determination, namely that; (1) The procedure for change of trial magistrate under section214 of the Criminal Procedure Act(CPA) was violated (2) The case was not proved beyond reasonable doubts 2 (3) The trial court erred in convicting the appellant in his absence while he had an explanation to make for his absence. On his part Mr. Katuri supported the appeal on two grounds that is the procedure for succession of trial magistrate under .section 214 of the CPA was violated and that section 226 of the CPA regarding the procedure for convicting a person in absentia was violated. It is convenient, I think, to confine the scope of my pronouncement to the procedural irregularities raised by both the defence counsel and the learned State Attorney. I have no hesitation in· stating, upfront, that I respectfully agree with them. Mr Mhina

submitted on the first ground by referring to the proceedings that show that evidence was first recorded by Mr Lyon -RM and later by Hamza -RM and no reasons were recorded for the succession. He submitted that such irrationalized succession violate the provision of section 214 of the CPA. On this point Mr. Katuri submitted, referring to an unreported decision of the Court of Appeal in Ally Juma Faiz @ Mpemba and Anothers Vs Republic, Criminal Appeal No. 401 of 2013 (unreported), that the subsequent proceedings by Hamza -RM are a nullity. On the violation of Section 226 of the CPA, Mr. Mhina submitted that upon the appellant being produced to the court he ought to have been given an opportunity to defend his case. Counsel submitted that the procedure under Section 226 read together with Section 25 (2) of the Magistrates' Courts Act require that the accused be heard upon his arrests. Referring 3 '\ to the case of Loning'o Sanagru Vs. Republic, Criminal Appeal No 396 Of 2013, the learned State attorney submitted that the proceedings are a nullity to the extent of the violation of Section 226 of the CPA. With respect to the learned advocate for the appellant and the learned State Attorney for the respondent Republic, I agree with them. The law is settled that violation of Section 214 of the CPA renders the proceedings, from the point of the violation, a nullity. In the case of

Barnabas Leon Versus The Republic, Criminal Appeal No 309 of 2014, CA at Arusha, (unreported) the Court of Appeal quotes its earlier decisions on the importance of the succeeding magistrate to state the reason for taking over the case as a requirement under Section 214 of CPA, but also to promote transparency. I also agree with the learned State Attorney and counsel on the point regarding the procedure under section 226 of the CPA, and the consequences of violating the same. Mr. Katuri invited me to nullify that part of the proceedings from where Hamza - RM took over and order a retrial. I think the proper thing to do is to nullify the entire proceedings, quash the convictions and set aside the sentences. I order retrial before another magistrate competent to try the case. If the office of the DPP feels that it needs to amend the charges, or outright drop them, it is at liberty to do so before the said trial magistrate. Order a~-diflgJY,'_. _,,:;-~\~ T Oi'·~ // 0 ;.::::-. 1:tif'v .:'#i\\· ,';'.\~~n ~-\ fr~ ~\\ I. . Kl USI \\:t.. ~ i/ 1.\-.:;, , ),ii,_/2 JUDGE \·\~ ,. ...;""-<cjc,,,;;,O,<••'' ,,,,/ / .1/ '-" \-< ------ ,,/~;:f// 15/12/20i6 '---~-:,;~ --·,..·--·-··~- . 4