BAHATI HOLELA KAHEHA final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CRIMINAL APPEAL NO. 2580 OF 2025 (Originating from the decision of the District Court of Bukombe in Criminal Case No. 4339 of 2024 before B. J CHITEPO SRM) BAHATI HOLELA KAHEMA----------------------------------------------- APPELLANT VERSUS THE REPUBLIC------------------------------------------------------- RESPONDENT JUDGMENT Date of last order: 28 February 2025 Date of Judgment: 02 April 2025 K. D. MHINA, J. BAHATI HOLELA KAHEHA, the appellant, appeared before the District Court of Bukombe, charged with Unlawful Possession of Firearm Contrary to section 20(1) of the Firearms and Ammunitions Act No. 2 of 2015 read together with paragraph 31 of the First Schedule to, and Sections 57(1) and 60(2) of the Economic and Organized Crimes Control Act Cap.200 [R.E 2022]. It was particularised that on 30 January 2024 at Kigosi Game Reserve within Bukombe District in Geita Region, the appellant was found in unlawful 1 possession of one muzzleloader commonly known as Gobole without a valid permit. He pleaded not guilty to the charge; however, after a full trial, the trial court found the appellant guilty and convicted him. Upon his conviction, he was sentenced to twenty (20) years in jail. Undaunted, the appellant appealed to this Court with five grounds. However, while composing a Judgment, I discovered the controversy on the issue of the jurisdiction of the trial court. The controversy is whether there was consent to try an economic case issued under section 26 (1) of the Economic and Organized Crimes Control Act Cap 200 R:E 2022 (“the Act) and a certificate to transfer and confer jurisdiction to the subordinate court issued under section 12 (3) of the same Act. Therefore, First, I raised the issue suo motu at this appellate stage, as it touches on the jurisdiction of the trial court. See Tanzania Revenue Authority vs. Tango Transport Company, Civil Appeal No. 84 of 2009 (Tanzlii), where the Court of Appeal held that; 2 “The law is well settled, and Mr. Bundala is perfectly correct that a question of jurisdiction can be belatedly raised and canvassed even on appeal by the parties or the court suo moto, as it goes to the root of the trial. Jurisdiction is the bedrock on which the court's authority and competence to entertain and decide matters rests”. Second, I placed the issue on record and informed the parties so that they would be aware of it. See Yusuf Khamis Hamza vs. Juma Ali Abdallah, Civil Appeal No. 25 of 2020 (Tanzlii), where it was held that:- “Of course, we are alive with the settled position of the law that time limitation goes to the jurisdictional issue of the court and that it can be raised at any time, even at the appellate stage by the court, but for it to be noted and raised it would require material evidence to be placed before the Court”. Third, I invited the parties to address this Court on the issue raised as a way of affording them the right to be heard. See Charles Christopher Humprey Kombe vs. Kinondoni Municipal Council, Civil Appeal No. 81 of 2017 (Tanzlii), where the Court of Appeal held that; “On the authority of the decisions cited above, we are certain in our mind that the High Court erred in basing the decision 3 of the case on the issue raised suo motu without according the parties the right to be heard on that issue. In John Morris Mpaki (supra), we held that any decision affecting the rights or interests of a party is a nullity even if the same decision would have been arrived at had the affected party been heard”. By way of background on the issue, the records indicate that at the trial, the appellant was charged with the economic case. On 21 February 2024, when he appeared before the trial court for the first time, he was not required to plead because the trial court lacked jurisdiction due to the absence of a certificate and consent from the Director of Public Prosecutions. On 20 June 2024, the prosecutor informed the trial court that they had filed the certificate and consent in the record (eCMS). Additionally, on that date, the records indicated that the trial magistrate stated the consent and certificate had been filed. However, the records indicate otherwise. In the record, neither certificate nor consent was filed and admitted by the trial court. The case was adjourned to 3 July 2024 for the conduct of the preliminary hearing. On that date, the trial court proceeded with the preliminary hearing, but no certificate or consent was filed in the records. 4 The case was adjourned to 15 July 2024 for hearing. Then, the trial proceeded to its finality, and the appellant was convicted. At the hearing of the issue, I raised suo motu, the appellant appeared in person/unrepresented, while the respondent, the Republic, had the services of Ms. Deodatha Dotto, a learned State Attorney. When invited to address the issue I had raised suo motu, the appellant had nothing to submit. On her part, Ms. Dotto conceded that the trial court proceeded with a trial without jurisdiction due to a lack of consent and a certificate from the DPP. She explained that in the proceedings, it was recorded that the consent and certificate were filed; however, they were not found in the records. That means the whole proceedings were defective. Due to that jurisdictional error, Ms. Dotto invited this Court to order a retrial since the previous trial was defective. To substantiate her prayer, she cited Rashid Kazimoto and another vs. Republic, Criminal Appeal No. 5 458 of 2016, at page 21, and Samson Amon @Kauga vs. Republic, Criminal Appeal No. 446 of 2019 (Both Tanzlii), at page 15. Having heard the parties on the pertinent issue of jurisdiction, I agree with Ms. Dotto's submission that the trial court proceeded with the trial despite lacking jurisdiction to try the appellant, who was facing an economic offence. This is because, under section 3 of the Act, the High Court is the court vested with jurisdiction to try cases involving economic offences. That section reads; "The jurisdiction to hear and determine cases involving economic offences under the Act is hereby vested in the High Court." However, the DPP, under section 26 (1) of the Act, is vested with the power to confer jurisdiction to subordinate courts to try economic cases by issuing a consent. The section read as follows; "Subject to the provisions of this section, no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions”. 6 Further, under section 12 (3) of the Act, the DPP has a mandate to transfer to the subordinate court to try cases involving economic offences. Therefore, in our jurisdiction, the current position of the law is that subordinate courts acquire jurisdiction to try cases involving economic offences by way of consent and a certificate issued by the DPP. In the instant matter, as previously alluded to by this Court and as rightly submitted by Ms. Dotto, the trial court proceeded to try the economic case against the appellant without the consent and certificate issued by the DPP, as no consent and certificate were filed, admitted, or found in the trial court’s records. As to the effect of the anomaly found, it vitiates the proceedings and renders the resultant judgment a nullity due to the court’s lack of jurisdiction. There is a plethora of authorities on this, such as Mhole Saguda Nyamagu vs. Republic, Criminal Appeal No. 334 of 2016 (Tanzlii), where it was held that; “From the foregoing brief discussion, we are satisfied that in the absence of the D.P. P’s consent given under Section 26 (1) of the Act and the requisite certificates given under subsections (3) and (4) of section 12 of the Act, the trial 7 District Court had no jurisdiction to hear and determine charges against the appellant, as it did. We further firmly hold that the purported trial of the appellant was a nullity. In similar vein, the proceedings and the judgment made by the High Court dated 8/06/2016 based on null proceedings of the trial court were also a nullity”. Therefore, based on the discussion above, I hold that the trial court conducted the trial without jurisdiction. Thus, I quash the proceedings, conviction, and judgment of the trial court and set aside the sentence as they originated from a nullity. As the way forward, Ms. Dotto prayed for a retrial, as the previous trial was deemed defective. The prayer which I agree. For the interest of justice, I order re-trial before another Magistrate of competent jurisdiction. Furthermore, I order that the retrial be expedited so that the case can be resolved as quickly as possible. The appellant was sentenced on 30 December 2024; therefore, should the fresh trial end with a conviction, when imposing sentence, the convicting Magistrate should take into account the period already served by the appellant in prison. 8 In the meantime, the appellant should remain in custody to await the resumption of the trial. It is so ordered. K. D. MHINA JUDGE 02/04/2025 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 02/04/2025 9