20171002 TZHC Dar es Salaam1

IN THE HIGH COURT OF TANZANIA . DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 168 OF 2016 (Originating from the Decision of the Resident Magistrates Court of Kibaha in Criminal Case No. 68 of 2014 District at Kibaha) SEULI LUCAS ............................................................ 1 ST APPELLAT MOHAMED S/0 ABDALLAH SMAIL .......................... 2ND APPELLANT VERSUS THE REPUBLIC ......................................................... RESPONDENT JUDGMENT MKASIMONGWA, J. On 20/1/2016 SEULI LUCAS and MOHAMED S/O ABDALLAH ISMAIL, the 1st and 2nd Appellants, respectively, were convicted by the Resident Magistrates Court at Kibaha of Armed Robbery contrary to Section 287A of the Penal Code [Cap. 16 R.E 2002] as it was amended by Act No. 3 of 2011. They were accordingly sentenced to thirty (30) years imprisonment. Being aggrieved by both the conviction and sentence, the Appellants have filed appeal in this court searching for redress. In the same Petition of Appeal the Appellants have each and own filed separate grounds of appeal. Whereas the 1st Appellant has twelve grounds of Appeal the 2nd Appellant has ten (10). At the hearing the 1 Appellants appeared in person whereas he Respondent Republic was represented by Miss Debora Mcharo, learned State Attorney. In their submission in chief the appellants contended stated that they have filed this appeal with their respective grounds. They pray the court to consider the grounds and find merit in the appeal and ultimately the same be allowed and they be released from of jail. On the other had Miss Mcharo (S/A) submitted that going by the records proceedings before the trial court were tainted with some irregularities. She stated there was non-compliance of the provisions of Section 214 of the Criminal Procedure Act [Cap. 20 R.E 2002] when there was change of magistrates who tried the case. The Section mandatorily provides that where there is change of trial magistrate in a Criminal Case, the Magistrate taking over the case from the previous one must state reasons why the matter could not proceed before the former fellow. The learned State Attorney referred the court to the decision in the case of ALLY JUMA FAIZ @ MPEMBA AND ANOTHER Vs. REPUBLIC: CRIMINAL APPEAL NO. 401 OF 2013 (CAT Unreported) in which Section 214 of the Criminal Procedure Act was judicially considered. In the case the court insisted that reasons must be given showing why there is change of magistrate in the case. The court concluded that non-compliance of Section 214 of the Criminal Procedure Act renders the matter a nullity. Miss Mcharo prayed the court that it nullifies the proceedings and order for retrial of the case. 2 I response to the issue the 1st Appellant submitted that, the submission by the learned State Attorney is based on a technicality of the law and not on the grounds of appeal raised by the Appellants. He submitted further that going by the evidence adduced in the case by the prosecution, the same did not prove the case beyond reasonable doubt. If retrial of the case is ordered, the prosecution will tape that opportunity and decorate their case by filling in the gaps in their case. In the case of SHABAN SEIF AND ANOTHER Vs. R CRIMINAL APPEAL NO. 215 OF 2015, when the Court of Appeal was faced this similar situation it did not order retrial of the matter from fear that the prosecution will have an opportunity to fill in the gaps apparent in the evidence. In his submission, the 2nd Appellant subscribed to what was submitted by the 1st Appellant. I have considered the submissions by the parties. I am satisfied from the record of the trial court that the case in question was first assigned to Hon. B.M. Ndesarua, Senior Resident Magistrate (SRM) who heard and recorded the evidence given by WAZIRI MOHAMED MAKONGO (PWl) on 23/2/2015. For various reasons the hearing could not continue before the trial magistrate (Hon. Ndesarua) on 5/3/2015 and 18/3/2015 to which dates it .was adjourned. When the matter came up for hearing on 31/3/2015 it was called before Hon H. I. Mwailolo SRM who eventually on 28/4/2015 received and recorded the testimony of PW2. Hon Mwailolo heard the remained part of the prosecution case, the defence and eventually prepared the judgment of the court. Evidently the record shows that there was change of trial Magistrates in the matter. Where there is change of magistrates in Criminal Proceedings such a situation is governed 3 ',; by the provisions of Section 214 of the Criminal Procedure Act [Cap. 20 R.E 2002] which reads as follows:- "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 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 proceedings recorded by his predecessor and may in the case of trial and if he consider it necessary re-summon the witnesses and renounce the trial or the committal proceeings" In my view words " •.. is for any reason unable to complete the trial" and " ••• within a reasonable time" in the Section suggest for reason to be given for failure of a predecessor magistrate to complete a trial he/she has begun. The reasons must be recorded in the record as it was held by the Court of Appeal of Tanzania in the case of PRISCUS KIMARIO Vs. THE REPUBLIC: CRIMINAL APPEAL NO. 301 OF 2013 (Unreported) that:- "... where it is necessary to re-assign a partly heard matter to another magistrate, the reason for the failure of the first magistrate to complete the matter must be recorded. If that is not done if may lead to chaos in the administration Justice" In the case of ALLY JUMA FAIZI @ MPEMBA (Supra) the Court of Appeal held that. 4 "Non-compliance with the provisions of Section 214 ... rendered proceedings from the trial court to the High Court a nullity" The same stand the Court had in the Case of SHABAN SEIF AND ANOTHER (Supra). In the instant case it is conspicuously shown by the record that there were no reasons recorded for failure by the predecessor Magistrate to complete trial of the case. This was a total non-compliance of Section 214 of the Criminal Procedure Act which vitiated proceeding and therefore rendered them a nullity. As such the proceedings of the trial court are hereby nullified. Next is whether the court in the circumstances of this matter may or not order for retrial of the case and consideration is whether ordering the retrial will not amount to affording the respondent an opportunity to fill in the gaps. I have considered the adduced evidence on record and find this is a fit case for the court to order for retrial. This is however subject to the powers of the Director of Public Prosecution to institute criminal proceedings. Dated at Dar es Salaam this 2nd of October, 2017. E.Jd~ JUDGE 2/10/2017 5 Date: 2/10/2017 Coram: Mkasimongwa,J For the 1st Appellant: Present in person For the 2nd Appellant: Present in person For the respondent Miss Debora Mcharo - S/A C. C. Wangwe Miss Debora Mcharo (S/ A): My lord the matter is coming up for Judgment. The appellants are present in person and we are prepared to receive the judgment. Order: Judgment delivered in Chambers this 2nd of October, 2017 in the present of Miss Debora Mcharo (S/A) for the Respondent -and of the Appellants in person. Right of appeal is explained. {)\J Fir· . -~ ::-..---- ,,t/,.,-f,- f;:(;ff E.Jdo~a' \.:: ~;,~-~~:-~> JUDGE ,-~·: ------ ' -( * 2/10/2017 6