CRIMINAL APPEAL NO 833 OF 2023 BONIFACE SHIRIMA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: GALEBA. 3.A. FIKIRINI. J.A. And ISMAIL, J.A.1 ) CRIMINAL APPEAL NO. 833 OF 2023 BONIFACE SHIRIMA......................................... ...................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Judgment of the Resident Magistrate Court of Dar es Salaam at Kisutu, Extended Jurisdiction) (Mranqu. SRM-Ext. Jurist dated the 26th day of July, 2021 in Criminal Appeal No. 100 of 2019 JUDGMENT OF THE COURT 14th & 18th March, 2025 FIKIRINI. 3.A.: This is the second appeal for the appellant, Boniface Shirima. The appellant was charged and convicted of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 Revised Laws, at District Court of Ilala at Samora Avenue in Criminal Case No. 101 of 2017. Particulars of the offence were that the appellant, on the 19th February, 2017, at Kisukuru area within Ilala District in Dar es Salaam Region, did have carnal knowledge of one JL or simply referred to her as the victim to protect her dignity. The appellant pleaded not guilty. After hearing from six (6) prosecution witnesses, one (1) defence witness, and admitting one (1) exhibit-PF3 (exhibit PI), the Senior Resident Magistrate was convinced that the prosecution had proved its case to the hilt. He was convicted and sentenced to thirty (30) years' imprisonment. Displeased with the conviction and sentence, the appellant unsuccessfully appealed to the High Court. Before the High Court, the appeal was admitted and registered as Criminal Appeal No. 319 of 2019. However, on 6th September, 2019, the Judge Incharge, Dar es Salaam Zone, transferred the hearing of the appeal to a Resident Magistrate with extended jurisdiction conferred under section 173 of the Criminal Procedure Act, Cap. 20 Revised Laws (the CPA). The transfer and assignment were made explicitly to honourable E.G. Mrangu, Senior Resident Magistrate, Extended Jurisdiction (SRM-Ext. Juris) under section 256 A (1) of the CPA. The appeal was heard, and finally, judgment was pronounced on 26th July, 2021, upholding the trial court's conviction and sentence. Undeterred, the appellant preferred an appeal to the Court of Appeal on four (4) grounds. However, for the reason that will be apparent soon, we shall not reproduce those grounds. When the appeal was placed before the Court on 14th March, 2025, the appellant appeared unrepresented and hence fended for himself, while Ms. Neema Moshi, learned Senior State Attorney, and Ms. Clemence Mango, learned State Attorney, both appeared representing the respondent/Republic. Before proceeding with the hearing of the appeal, we wanted to satisfy ourselves with the propriety of the transfer order found on page 61 of the record of appeal, made pursuant to section 256 A (1) of the CPA. Ms. Moshi was straight and brief, admitting that the transfer provision invoked was incorrect, so no valid transfer was made. She contended that the defect marred all the proceedings before the SRM-Ext. Juris. Subsequent to the irregularity noted, she urged us to nullify the proceedings, quash the decision, and set aside the order. On the way forward, the learned Senior State Attorney prayed that the record be remitted to the High Court for hearing of the appeal either by itself or, if there is a transfer, a proper provision be invoked. The appellant, being a lay person, had nothing to contribute apart from acknowledging hearing the learned Senior State Attorney's address to the Court. In view of the pointed out anomaly, we think the proper place to start our deliberation on the subject would be visiting section 256 A (1) of the CPA, applied to effect the transfer. The provision is reproduced for clarity:- "256 A (1). The High Court may direct that the taking o f piea and the trial o f an accused person committed , for trial by the High Court, be transferred to and be conducted by a resident magistrate upon whom extended jurisdiction has been granted under subsection 173." From the provision's wording, the transfer envisaged is that of cases triable by the High Court as a court of first instance involving plea-taking and trial. One such situation is murder trials, in which the Judge in charge, relying on section 256 A (1) of the CPA, could transfer the case to the Resident Magistrate with Extended Jurisdiction duly conferred under section 173 (1) of the CPA, in the Resident Magistrate's court to carry out the assignment. Such a transfer is appropriate and in line with what has been provided by the provision. The situation is, however, different with appeals. With appeals, the recourse is section 45 (2) of the Magistrate's Courts Act, Cap. 11 Revised Laws (the MCA) and not section 256 A (1) of the CPA. Section 45 (2) of the MCA provides thus:- "45.-(l)N /A (a) N/A (2) The High Court may direct that an appeal instituted in the High Court be transferred to and heard by a Resident Magistrate upon whom extended jurisdiction has been conferred by section 45(1)," [Emphasis added] In the circumstances of the present appeal, the proper and applicable provision to effect transfer would be section 45 (2) of the MCA. Therefore, with the application of section 256 A (1) of the CPA, no transfer was effected, conferring jurisdiction on SRM-Ext. Juris. As a result, the proceedings before the SRM-Ext. Juris are a nullity as no valid transfer was effected by the order dated 6th September, 2019, conferring jurisdiction upon the said SRM-Ext. Juris. See: Abeid Yahaya v. R, (Criminal Appeal No. 549 of 2016) [2018] TZCA 233 (20thApril, 2018; TANZLII); Nasra Hamisi Hassan v. R, Criminal Appeal No. 545 of 2017 [2020] TZCA 1836 (3rd November, 2020; TANZLII) and Hamisi Said @Juma v. R, (Criminal Appeal No. 627 of 2021) [2024] TZCA 819 (23rd August, 2024; TANZLII). Consequently, under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 Revised Laws, we quash the entire proceedings before honourable Mrangu, SRM-Ext. Juris, the resultant judgment and orders stemming from those proceedings. We order the record in Criminal Appeal No. 100 of 2019 (Initially High Court Criminal Appeal No. 319 of 2019) to be remitted to the High Court for a hearing of the appeal or otherwise proper transfer under section 45 (2) of the MCA to be made to the RM-Ext. Juris. Meanwhile, the appellant shall remain in custody, awaiting a hearing of his appeal. DATED at DAR ES SALAAM on this 18th day of March, 2025. Z. N. GALEBA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 18th day of March, 2025 in the presence of the Appellant in person via video link from Ukonga Prison and Mr. Clemence Kato, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL