Ruling Bukombe 1

Page 1 of 7 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF GEITA AT GEITA CRIMINAL APPEAL NO. 22461 OF 2024 (Arising from Criminal Case No. 113 of 2023 of the District Court of Bukombe at Bukombe) SIKUJUA MWINULA…………………………………………….…………. APPELLANT VERSUS REPUBLIC…………………………….…………………………..………… RESPONDENT RULING Date of last order:19/08/2024 Date of Ruling: 23/08/2024 MWAKAPEJE, J.: The appellant was convicted and sentenced to 30 years of imprisonment for the offence of rape, contrary to sections 130(1), 130(2)(e), and 131(1) of the Penal Code, Cap 16 [RE 2022], by the District Court of Bukombe in the Geita Region. Dissatisfied with the conviction and sentence, the appellant has filed an appeal before this court. The facts leading to this appeal are as follows: on 21.11.2023 in the morning hours, the appellant went to the victim’s house and found the victim, a girl aged 16, alone while doing house chores. He told the girl to accompany him to the farm to harvest cassava, an instruction he told her to have come from her father. The girl, without hesitation, took herself with him to the task. Upon reaching a cassava farm, he undressed her Page 2 of 7 and removed his clothes. He inserted his penis into her vagina while telling her that her father owed them money which he is now recovering by having sexual intercourse with her. After quenching his thirst, the appellant callously abandoned the girl in a state of utter helplessness. Despite her dire situation, she managed to make her way to a nearby residence where kind-hearted persons provided her with much-needed assistance. Subsequently, these compassionate people escorted her to her father, who then promptly accompanied her to the police station and later to the hospital for necessary treatment. The appellant was eventually apprehended, charged with the offence of rape, convicted, and subsequently sentenced accordingly. Unhappy with the trial court's ruling, the appellant has now appealed to this court, articulating eight grounds to challenge both the conviction and the sentence imposed. When the appeal hearing commenced, the appellant appeared pro se, while the respondent was represented by Ms. Verena Mathias, a learned State Attorney. The appellant requested the State Attorney's aid in reviewing his grounds of appeal, citing difficulty in memorizing the content. Prior to delving into the appellant's grounds of appeal, Ms. Mathias brought to the court's attention a notable observation regarding Page 3 of 7 the trial court's failure to adhere to section 214 of the Criminal Procedure Act. Ms Mathias contended that the case was initially presided over by Hon. Muchunguzi RM, who recorded the testimony of PW1, PW2, PW3, PW5, and PW6. Subsequently, without any explanation, the testimony of PW4, erroneously marked who was the medical professional, was taken by Hon. Mutembei PRM. The said Hon. Mutembei succeeded in the proceedings and rendered a judgment in the case without clarifying the reasons for the change in presiding magistrate to the accused beforehand. In bolstering her argument, she cited the case of James Maro Mahende v Republic (Criminal Appeal No. 83 of 2016) [2018] TZCA 449 to the court. Subsequently, she urged the court to annul and invalidate the sentence and thereafter direct a retrial by another Magistrate in strict conformity with the provisions of section 214(1) of the Criminal Procedure Act, Cap 20 RE 2022. When this Court probed the compliance of section 192 of the Criminal Procedure Act, the learned State Attorney was of the view that the same was not complied with since, despite it being indicated that the facts were read and the appellant responded to, there is no indication that the facts were recorded in the proceedings. Page 4 of 7 On the other hand, the appellant did not object to the submission made by the learned State Attorney but rather implored the court to proceed as it deemed appropriate. Indeed, as articulated by the erudite State Attorney, initially, the case was presided over by Hon. Muchunguzi RM, who documented the testimonies of six prosecution witnesses. Subsequently, on 23/05/2024, the case was assumed by Hon. Mutembei PRM, who recorded the testimony of one prosecution witness and oversaw the defence while composing the judgment. Now, section 214 (1) of the CPA, which is the governing provisions, provides as follows; “(1) Where any magistrate, after having heard and recorded the whole or any part of the evidence in any trial or conducted in whole or part any committal proceedings is for any reason unable to complete the trial or the committal proceedings or he is unable to complete the trial or committal proceedings within a reasonable time, another magistrate who has and who exercises jurisdiction may take over and continue the trial or committal proceedings, as the case may be, and the magistrate so taking over may act on the evidence or proceeding recorded by his predecessor and may, in the case of a trial and if he considers it necessary, resummon the witnesses and recommence the trial or the committal proceedings.” [Emphasis supplied] From the above verbiage, the record has failed to illuminate the reasons for the predecessor trial magistrate's inability to complete the Page 5 of 7 trial. On the date, i.e. 23/05/2024, Hon. Mutembei took over; he just proceeded with the hearing of another prosecution witness without observing the requirement of this section. The importance of observing this section has been reiterated in a number of cases. For instance, in the case of Priscus Kimaro vs R, Criminal Appeal No. 301 of 2013 (unreported), it was clearly articulated that: “……………where it is necessary to reassign a partly heard matter to another magistrate, the reason for the failure of the first magistrate to complete must be recorded. If that is not done, it may lead to chaos in the administration of justice. Anyone, for personal reasons, could just pick up any file and deal with it to the detriment of justice. This must not be allowed." [Emphasis supplied] Further, in the case of Abdi Masoud @Iboma vs Republic (Criminal Appeal No 116 of 2015) [2015] TZCA426, it was categorically stated that: “In our view, under section 214 (1) of the CPA, it is necessary to record the reasons for reassignment or change of trial magistrates. It is a requirement of the law and has to be complied with. It is a prerequisite for the second magistrate's assumption of jurisdiction. If this is not complied with, the successor magistrate would have no authority or jurisdiction to try the case. Since there is no reason on record in this case as to why the predecessor trial magistrate was unable to complete the trial, the proceedings of the successor magistrate were conducted without jurisdiction, hence a nullity. [Emphasis Supplied] Guided by these authorities, I, in the present case, wholeheartedly agree with that observation and emphatically support Ms Mathias' Page 6 of 7 assertion that the violation of section 214 (1) of the CPA occurred. In essence, the transition to Hon. Mutembei PRM, devoid of explicit reasons in the records, constituted a legal anomaly. Section 214(1) mandates the recording of the reasons behind the reassignment or replacement of a trial magistrate to deter against potential misuse of authority by those responsible for such decisions, thereby preventing arbitrary actions. Apart from the non-compliance with section 214(1) highlighted by the learned State Attorney, this court further noted, and as correctly stated by Ms Mathis, the absence of evidence in the trial records regarding whether the trial magistrate conducted the preliminary hearing proceedings in accordance with section 192 of the CPA. This particular section emphasizes the importance of expediting trials to save time and resources, albeit without prejudicing the rights of the accused person due to non-adherence to its stipulations. See the case of Bahati Robert vs Republic (Criminal Appeal No. 146 of 2013) [2014] TZCA 240 (17 September 2014). Since there were no records as to the compliance of section 192, the accused should be given the benefit of the doubt. Consequently, since no reasons are documented in this instance for the inability of Hon. Muchunguzi RM to conclude the trial, and the appellant was not duly informed, the proceedings overseen by the successor, Hon. Mutembei PRM, were conducted without jurisdiction, Page 7 of 7 rendering them null and void. As a result, I nullify them, and proceed to quash the conviction and set aside the sentence imposed on the appellant. However, given the circumstances of the case and the evident procedural deficiencies during the preliminary hearing, pursuant to section 214(2) of the Criminal Procedure Act, I order a prompt retrial before another magistrate with the requisite competence. It is so ordered. DATED at GEITA this 23rd day of August 2024. G.V. MWAKAPEJE JUDGE This Ruling is delivered this 23rd day of August 2024 in the presence of Ms. Verena Mathias, learned State Attorney for the Respondent, and the Appellant in person. G.V. MWAKAPEJE JUDGE