CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: JUMA, C.J., LEVIRA, J.A., And NANGELA. J.A/1 CRIMINAL APPEAL NO. 234 OF 2022 THOBIAS MWITA @ MSABI.............................................1st APPELLANT DANIEL MRIMI @ SABORA.............................................2nd APPELLANT VERSUS THE REPUBLIC ............................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali, J.) dated the 22ndday of February, 2022 in Criminal Session No. 94 of 2021 RULING OF THE COURT 11th & 14th March, 2025 LEVIRA, J.A.: Thobias Mwita @ Msabi and Daniel Mrimi @ Sabora, the appellants, were not satisfied with the decision of the High Court of Tanzania at Musoma (the trial Court) in Criminal Session Case No. 94 of 2021. Before the trial court, the appellants were arraigned facing murder charge contrary to sections 196 and 197 of the Penal Code, Cap 16 (the Penal Code). It was alleged in the particulars of the offence that, on 8th January, 2021 at Sokoni Village within Tarime District in Mara Region, the appellants murdered one Marwa Wambura Masana (the deceased). The appellants pleaded not guilty to the charge leveled against them. As a result, the prosecution had to call three witnesses and tendered four exhibits to prove the charge against the appellants. For the purposes of this ruling, we shall not list the witnesses' names or the exhibits tendered. The defence side had two witnesses (the appellants) who raised a defence of alibi and tendered no exhibit. The trial court, having considered the evidence by both sides, was satisfied that the deceased died unnatural death and it went further to consider whether the prosecution proved the charge against the appellants beyond reasonable doubt, as it can be observed at page 89 of the record of appeal. In answering that issue, the trial court, having weighed the prosecution evidence against the appellants' defence and applied the applicable law, was satisfied that the prosecution had proved beyond reasonable doubt that, "Marwa s/o Wambura Masana was killed by the accused person by hitting him on his lib thereby causing massive bleeding which caused his death." [Emphasis added]. Notwithstanding the fact that all along the learned trial Judge was dealing with two accused persons (the appellants herein), his finding based on one accused whose name was not disclosed, as per the emphasis above. Equally strange, on the same page, immediately after the above finding, he came up with another finding in the following terms: '!I find without any scintilla o f doubt that it has been proved beyond reasonable doubt that the accused persons killed the deceased with requisite malice aforethought and he desired the deceased to die. That said, I find the accused person Chacha Kawa @ Mwita, guilty and consequently convict him o f murder o f the deceased Marwa s/o Wambura Masana contrary to section 196 and 197 o f the Penal Code [Cap 16 R.E. 2019], [Emphasis added]. We observe from the subsequent finding that, the learned trial Judge found the accused persons, most likely the ones whose names appear in the information, to have killed the deceased with requisite malice aforethought. But again, he referred to a single accused when he said, "he desired the deceased to die."In the end, the name of the accused person he had referred, was disclosed to be "Chacha Kawa @ A/iv/fa//which appears nowhere else in the record of appeal. Ultimately, the learned trial Judge sentenced each accused person, without naming them, to suffer death by hanging pursuant to section 197 of the Penal Code as read together with section 322(1) and (2) of the Criminal Procedure Act, Cap 20 (the CPA). Nonetheless, the subsequent warrants of commitment issued to Tarime Prison by the learned trial Judge, authorized and required Thobias Mwita Msabi and Daniel Mrimi Sabora (the appellants herein) to be received into the prison until when the order to suffer death by hanging is fulfilled. This can be observed at pages 101 and 102 of the record of appeal. The backdrop above triggered us, when the appeal was called on for hearing, to invite counsel for the parties to address the Court on the competence of the appeal. The appellants were represented by Mr. Leonard Elias Magwayega, learned advocate, whereas the respondent Republic had the services of Ms. Shoshe Naiman and Mr. Charles Kagirwa, both learned Senior State Attorneys. Ms. Naiman addressed the Court on the issue raised briefly to the effect that, it was improper for the learned trial Judge to convict one Chacha Kawa @ Mwita who was not one of the appellants, as it appears at page 98 of the record of appeal. According to her, failure to convict is an irregularity which renders the appeal incompetent. Therefore, she contended that, since the appellants in the present appeal were not convicted by the trial court, the appeal before us is incompetent. In the circumstances, she submitted that the only remedy is for the Court to remit the case file to the trial court to enter convictions. She urged us to make such an order under rule 4 (2) (d) of the Tanzania Court of Appeal Rules 2009 (the Rules). On his part, Mr. Magwayega concurred fully with the submission by Ms. Naiman. He added that, upon convictions, if the appellants will still be aggrieved, they can appeal in accordance with the law. Having considered the entire record of appeal and hear from the counsel for the parties, we think, the question as to whether the appeal before us is competent should not detain us much. From the above, it is clear that no conviction was entered as far as the present appellants are concerned. The law is settled on the duty of the court to enter conviction after hearing both the complainant and the accused person. Section 235 of the CPA guides as follows: "235.-(1) The court, having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or shall acquit or discharge him under section 38 o f the Penal Code. "[Emphasis added] The above provision is couched in mandatory terms that, conviction must be entered before embarking on sentencing process. Nonetheless, we are aware of a number of our previous decisions where we gave the above provision liberal interpretation. For instance, in Ally Rajabu and 4 Others, v. Republic, Criminal Appeal No. 43 of 2012 (unreported), when the Court was dealing with the issue of failure to convict under section 235 (1) of the CPA, has this to say: "It is evident from the record that the learned trial Judge did not enter conviction before passing sentence. This was improper rendering the sentence imposed illegal. However, this Courtis empowered undersection 388 o f the CPA, to use its discretion in order to correct such irregularities. However, it can only invoke such powers if it is o f the considered view that the error in question did not occasion a failure o f justice - See Daud Norbert v Republic, CriminalAppeal No 242 of 2009 CAT(unreported)." The excerpt above gives a clear guidance, that before the Court applies section 235 of the CPA strictly with its obvious consequences, circumstances of the case should, as well, be considered too to weigh possibilities of the Court to invoke its powers under section 388 of the CPA. In the present case the circumstances are distinguishable from the above case where the Court invoked its powers under section 388 of the CPA to cure the irregularity. In the present case, it is not only that the learned trial Judge did not enter convictions of the appellant, the record of appeal speaks louder that, no any finding regarding guiltiness or otherwise of the appellants was made. The Judgment of the trial court contains a portion which has no relation with the matter at hand as it refers to a person who is not among the parties herein and did not feature anywhere in the proceedings. That apart, the sentences purportedly meted upon the appellants did not disclose who were sentenced. In the totality, we are settled in our mind that injustice was occasioned, as the appellants are currently serving illegal sentences out of fatal irregularities committed from the time of preparation of the judgment and thereafter. Circumstances of this case favor strict interpretation of section 235 (1) of the CPA, with no option to the Court to invoke the powers under section 388 of the CPA to treat as done which ought to have been done. Consequently, in exercise of our revisional powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141, we hereby quash and set aside the judgment of the High Court and the appellants' death sentences. We remit the case file to the trial court and direct the learned trial Judge to recompose a judgment and enter proper convictions according to the law. Should the appellants feel aggrieved by the convictions to be entered, they shall be at liberty to appeal against them. In the meantime, the appellants shall remain in custody pending the processes as directed above. DATED at MUSOMA this 13th day of March, 2025. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Ruling delivered this 14thday of March, 2025 in the presence of the Appellant in person - linked Via Video Conference from Musoma District Prison and Mr. Isihaka Ibrahim, learned State Attorney for the respondent/Republic is here by certified as a true copy of the