20080502 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MSOFFE ,J.~, RUTAKANGWA, J.A, And MBAROUK, J.A.) CRIMINAL APPEAL NO. 49 OF 1993 1. HENRY KAGOLI 2. KASAMUKA DANIEL. ................................................ APPELLANTS VERSUS THE REPUBLIC ................................................................ RESPONDENT {Appeal from the conviction of the High Court of Tanzania at Tabora) (Kajeri,PRM {Ext.Jur.) dated 27 th day of February 1993 in Criminal Sessions Case No. 32 of 1992 JUDGMENT OF THE COURT 28 th April, & 2nd May,2008 MBAROUK,J.A: .- The appellants Henry Kagoli and Kasamuka Daniel were jointly · charged with three counts of murder contrary to section 196 of the Penal Code in Criminal Sessions Case. No. 32 of 1992 of the High Court of Tanzania at Tabora. They were found guilty as charged, convicted and sentenced to suffer death by hanging. Being aggrieved by the conviction and sentence, the appellants have lodged this appeal. 2 Briefly, the case for the prosecution was that, on or about 9th July, 1986 at Rumpungu river, Kibondo District in Kigoma Region, the appellants jointly and together, murdered three persons by the .names of Wankwale Barungura, Barungura Bukuru and Nteziliba ' Bukuru. The three deceased persons were suspected by some villagers to be witches. The appellants were associated with the killing of the three deceased persons, who were thrown into, and their bodies recovered floating in, the said river. The appellants were then arrested, charged, found guilty, and then convicted. Thereafter they were sentenced accordingly. In this appeal, the 1st and 2nd appellants were represented by Mr. Silvery C. Byabusha and Mr. Anthony K. Nasimire, learned advocates, respectively. Ms. Arafa Msafiri, learned State Attorney, represented the respondent Republic. At the hearing of the appeal we allowed Mr. Nasimire to argue the-first ground of appeal in the second appellant's memorandum of the appeal. We did so because, we thought, the ground was enough to dispose of the appeal. The ground reads:- 3 That the learned . trial Magistrate (Extended Jurisdiction) was not entitled to sit in the High Court and accordingly the judgment given by him in the above-mentioned case was a nullity for want of jurisdiction. Mr. Nasimire submitted that the record of appeal shows that as from 31/8/1992 the proceedings of the case was started by Katiti, J. (as he then was) bearing the High Court registry Criminal Sessions Case No. 32 of 1992. Katiti, J. took the pleas, thereafter conducted the Preliminary Hearing, and then adjourned the hearing of the case to a date to be fixed by the District Registrar. Mr. Nasimire further submitted that it is surprising that on 3/2/1993, without any order of transfer, Mr. M.G.C. Kajeri, Principal Resident Magistrate with Extended Jurisdiction, took charge of the trial of the case. He went on to say that Mr. Kajeri went on to deal with the case without there being a change of registries from the · High Court to the Resident Magistrates' Court. He emphasized that the Principal Resident Magistrate with Extended Jurisdiction had no jurisdiction. For that reason, he contended, all the proceedings 4 conducted by him were a nullity. Thereafter, he referred us to the cases of Siodi Mindeu V Kolombo Sokoite and Another, Civil Appeal No. 20 of 1997 (unreported) and Republic V Banyanyirubusu s/ o Gaspary and others, Criminal Revision No. 18 of 2006 ( unreported). In the premise, Mr. Nasimire prayed· for the appeal to be allowed on the basis of the above ground. On her part Ms. Arafa Msafiri, learned State Attorney for the respondent Republic, without any hesitation, supported Mr. Nasimire. She said that there is no doubt that the Principal Resident Magistrate with Extended Jurisdiction sat in the High Court instead of the Resident Magistrates' Court. She further submitted that the proceedings before the Principal Resident Magistrate with Extended Jurisdiction were a nullity. On our part, we are of the firm view that both Mr. Nasimire and Ms. Msafiri are correct that the proceedings before Mr.Kajeri, Principal Resident Magistrate with Extended Jurisdiction, were a 5 nullity. The Magistrate ought not to have sat in judgment over proceedings in the High Court. In the absence of an order of transfer of the case to him, the Principal Resident Magistrate with Extended Jurisdiction had no jurisdiction to deal with the case. At any rate, no order of transfer could be made after the preliminary hearing. An order of transfer, where desired, is made under Section 256 (A} (1) of the Criminal Procedure Act, 1985 which provides:- "The High Court may direct that the taking of a plea and the trial of 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 ( 1) of Section 173". (Emphasis supplied). In the case of Juma Lyamwiwe v. R, Criminal Appeal No 42 of 2001 (unreported) this Court observed:- 6 " ... where the High Court desires to direct a transfer then an order for such transfer should be made under s.256 A(l) of the Criminal Procedure Act, 1985, as amended ... the order of transfer should be made, in line with the spirit of Sections 192 ( 1) and 256 A (1) of the above Act, before plea taking" (Emphasis supplied). Several other decisions of this Court have underscored this same point. See, for instance, Samuel Nikolai V The Republic, Criminal Appeal No. 59 of 2001 and The Republic V Banyanyirubusu s/o Gaspary & Four others, Criminal Revision · No. 18 of 2006 (both unreported) to mention a few. For the above single reason, we allow the appeal solely on the basis of the complaint under ground one of the second appellant's memorandum of appeal. We. accordingly declare a nullity the trial which proceeded before Mr. Kajeri, Principal Resident Magistrate with Extended Jurisdiction. The High Court at Tabora· is directed to proceed with the tria I of the case from the stage it had reached a:~er , conducting the preliminary hearing. ,.... 7 DATED at MWANZA this 2nd day of May, 2008. J.H. MSOFFE JUSTICE OF APPEAL E.M.K. RUTAKANGVVA JUSTICE OF APPEAL . M.S. MBAROUK JUSTICE OF APPEAL I certify that this is a true copy of the original. KA RAR ' PPEAL .