CRIMINAL APPEAL NO 565 OF 2022 JOHN FRANK MAGEMBE KATUMBILI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA, J.A.. MAIGE, J.A. And MURUKE, J.A/l CRIMINAL APPEAL NO. 565 OF 2022 JOHN FRANK MAGEMBE @ KATUMBILI.................................. 1st APPELLANT MUSSA TITO @ SAMWEL.......................................................2nd APPELLANT VERSUS THE REPUBLIC............................................... ........................RESPONDENT (Appeal from the Decision of the Resident Magistrates' Court of Dar es Salaam at Kisutu) fLuambano. SRM.EXT.JUR^ dated the 11th day of November, 2022 in Extended Criminal Session Case No. 38 of 2020 JUDGMENT OF THE COURT 17th & 27th March, 2025 LILA. JA: Quite unexpectedly, it would appear, a conviction with murder and being sentenced to be detained during the president's pleasure in terms of section 26(2) of the Penal Code, is being challenged by the appellants in this appeal. Ordinarily, when such sentence is imposed, relevant administrative authorities execute the order without any further resort to the court in terms of section 26(3) of the Penal Code which mandatorily requires the presiding Judge to forward to the Minister for the time being responsible for legal affairs a copy of the notes of the evidence taken at the trial with a report in writing signed by him containing such recommendation or observation on the case as he may think fit. Where the Minister directs the convicted minor to be detained in a prison, the superintendent of such prison, after expiry of ten years, is enjoined to make a report in writing to the Minister of the condition, history and character of such convict for direction. Ultimately, upon receipt of the report, the Minister may order the convict be released or be placed under supervision or care of any person for ensuring the safety and welfare of the child convict as he thinks fit. Herein, it appears, no such steps were promptly initiated in respect of the appellants, hence the present appeal against both convictions and sentences meted out. Considering the course taken in the determination of this appeal, extensive and detailed recap of the background facts leading to the present appeal is of no essence. In that accord, this brief background suffices to appreciate and put the matter in proper perspective. Initially, the appellants together with one Jacob Peter Elias (then 3rd accused) were arraigned before Temeke District Court of the offence of murder contrary to section 196 of the Penal Code. In that charge, the appellants were accused of having murdered one Julius Hosea @ Kazeshi on 14/9/2017 at Serengeti area, Tungi Ward within Kigamboni District in Dar es salaam Region. On 17/3/2020, the date scheduled for committal of the accused for trial by the High Court, the prosecution entered a nolle prosequi against then 3rd accused under section 91 of the Criminal Procedure Act, Chapter 20 of our Laws (the CPA) thereby withdrawing the charge against him. Consequently, only the appellants were committed for trial by the High Court. Pursuant to the provisions of section 256A(1) of the CPA, which mandate the learned Judge In-charge to direct that a plea and trial of an accused committed for trial by the High Court be transferred to and be conducted by a resident magistrate upon whom extended jurisdiction has been granted, on 16/10/2020, the case was transferred to Honourable C. Kisongo, Principal Resident Magistrate with Extended Jurisdiction (PRM Ext. Jur.). She only conducted the preliminary hearing. Subsequently, the case was transferred to Honourable Luambano, SRM Ext. Jur who conducted the whole trial. At the conclusion, he found both appellants guilt of the charged offence and sentenced them as stated earlier. That was on 11/11/2022. Aggrieved, they duly lodged separate notices of appeal to the Court followed by separate memoranda of appeal each comprising of a single ground of appeal raising a single common issue. The same run thus: - "That, the trial PRM-ExtJur. erred in law and fact in convicting and sentencing the appellants while the prosecution failed to prove the case beyond reasonable doubt" While we would ordinarily have generally inclined to entertain this ground of appeal, taking into account of the seriousness of the procedural irregularity apparent on the face of the record which came to our knowledge as we were perusing the record of appeal, we were constrained to take up the point and engage the parties in our move to discharge our judicial responsibility to ensure that the laws are adhered to in the due process of dispensing justice. The trial of the case before both Honourable Kisongo PRM Ext Jur and Honourable Luambano, SRM Ext Jur raised two issues of legal concern; one, whether the transfer orders to them were proper and two, whether the procedure adopted in transferring the case to Honourable Luambano SRM Ext. Jur from Honourable Kisongo PRM Ext Jur. was also proper. We engaged the parties to address us on those two issues. Both appellants appeared before us and enjoyed the legal services of Ms. Precious Ahmad Hassan, learned advocate, whereas for the respondent Republic, representation comprised of a team of learned state counsel namely Ms. Anita Julius Muchunguzi and Mr. Clemence Kato, both learned Senior State Attorneys and Ms. Agness Mtunguja, learned State Attorney. On the issues of concern raised by the Court, both learned counsel of the parties were in agreement that the transfer orders were in respect of a case involving one accused person namely John Frank Magembe (1st appellant) while the case had two accused persons who were jointly committed for trial by the High Court, jointly charged and tried. They faulted the transfer orders as being improper hence both the trial and conviction of both appellants by the PRM Ext Jur were improper. In another angle, they were uncomfortable with the manner the case changed hands from Honourable Kisongo to Honourable Luambano. They questioned how the learned Judge In-charge was moved to re-transfer the case to another magistrate, the record being silent on the procedure adopted. The question revolved around want of transparency. It is common knowledge that the provisions of section 173(l)(a)(b) of the CPA vest, the Minister responsible for legal affairs after consultation with the Chief Justice and the Attorney General and by order published in the Gazette, with mandate to invest any magistrate with power to try any category of offences ordinarily triable by the High Court and impose any sentence which could be imposed by the High Court. In compliance with that, Honourable Kisongo and Honourable Luambano were duly vested with Extended Jurisdiction. Accordingly, the learned Judge In-charge, in terms of section 256A(1) of the CPA, purportedly transferred Criminal Sessions Case No. 38 of 2020 to the Resident Magistrate with extended jurisdiction. To appreciate the essence of the Court's concerns, the transfer order to Honourable Kisongo was couched thus: - "REPUBLIC VERSUS JOHN FRANK MAGEMBE............... ACCUSED In terms o f the provisions o f section 256A(1) o f the Criminal Procedure Act, I hereby direct the transfer o f this case to and be heard by the Hon. C. KISONGO, PRM Extended Jurisdiction." (Emphasis added) As stated earlier, Kisongo PRM Ext Jur conducted the preliminary hearing only. Subsequently, Hon. Luambano SRM Ext Jur proceeded with the hearing of case after what appears to be a result of the case being transferred to him as per this order: - "CRIMINAL SESSION CASE NO. 19 O F2020 ORIGINAL PI CASE NO. 20/2017 OF THE DISTRICT MAGISTRATES COURT OF TEMEKE AT TEMEKE REPUBLIC VERSUS JOHN FRANK MAGEMBE......... ACCUSED In terms o f the provisions o f Section 256A(1) o f the Criminai Procedure Act, I hereby direct the transfer o f this case to and be heard by the Hon. Luambano PRM Extended Jurisdiction." (Emphasis added) In order to vividly diagnose the infraction, it befits that we reproduce the provisions of section 256A which specifically govern transfers of cases from the High Court for trial by magistrates with extended jurisdiction. It reads: n256A.-(l) The High Court may direct that the taking o f a piea and the trial o f an accused person committed for triai by the High Court be transferred to, and be conducted by a resident magistrate upon whom extendedjurisdiction has been granted under subsection (1) o f Section 173." Admittedly, our research for any prior guidance of the Court on the matter was barren of fruits as we could not find an authority dealing with a situation similar to the instant one making it novel. However, the language used in the provisions above are clear and straight forward needing no interpolation. The section simply stipulates that a transfer to a resident magistrate with extended jurisdiction is done to an accused person who has been committed to the High Court for trial where the charge is in respect of one accused person. As stated above, in this case there were two accused persons who were committed for trial by the High Court hence the transfer order of the case from the High Court to the Court of the Resident Magistrate, Dar es Salaam, ought to have reflected the names of both accused persons. To the contrary, it was only the case involving the 1st appellant which was actually transferred to the Court of the Resident Magistrate for trial by PRM Ext Jur. It is obvious therefore, as correctly submitted by both learned counsel, the transfer orders of the case in line with the provisions of section 256A (1) were faulty. Apparently, the transfer orders, legally speaking, vested jurisdiction to the Principle Resident Magistrate with Ext Jur to try the case by the 1st appellant only while the charge constituted of two accused persons. We therefore hold that the transfer orders did not effectively transfer the case from the High Court. As the infraction touches on the jurisdiction of Resident Magistrates who tried the case, the infraction is fatal and it vitiated the whole trial. The second limb touches on transparency and the view taken by both sides is that the reason(s) for subsequent transfer of the case to Honourable Luambano, SRM Ext Jur and the procedure adopted were not reflected in the record of appeal. On our part, we subscribe to the views expressed by counsel of both parties. It is, indeed, clear that the provisions of section 256A(1) of the CPA are short of the procedure similar to those stipulated under Rule 10 of Order XVIII of the Civil Procedure Code, Chapter 11 of our laws (the CPC) and section 214(1) of the CPA which the Court interpreted them to require reason(s) be assigned by successor magistrate or judge why the assigned trial magistrate or judge was unable to complete the trial of the case or reasons for change of magistrate or judge. Discussing the import of section 214 of the CPA, the Court, in Priscus Kimaro vs Republic, Criminal Appeal No. 301 of 2013 (unreported) cited in Michael Paul Mwaliko vs Republic, Criminal Appeal No. 422 of 2016 (unreported), the Court stated as follows:- "Where it is necessary to re-assign a partly heard matter to another magistrate the reason for the failure o f the first magistrate to complete must be recorded. I f that is not done, it must lead to chaos in the administration o f justice. Anyone for personai reasons could pick up any file and deaf with it to the detriment o fjustice." The Court, guided by the above authority, held that the provisions of section 214(1) of the CPA, require the reason for change of magistrates be stated. It went further to state that giving reasons for change of magistrates and re-assignment of a case are two distinct matters, the former being a legal requirement whereas the latter is an administrative function of a magistrate exercising that function. No procedure obtains in the CPA which provide for what should be done in the event a magistrate with extended jurisdiction whom the case is transferred fails to complete the trial. It is common knowledge that transfer of a case from the High Court to the resident magistrate with extended jurisdiction under section 256A(1) of the CPA is done to a specific magistrate, the position consistently taken by the Court. As such, jurisdiction to try a case is confined to and is restricted to the magistrate appointed in terms of section 173 of the CPA and named in the transfer order only (See Nasra Hamisi Hassan vs Republic, Criminal Appeal No. 545 of 2017 (unreported). Practice has it that a transfer order is issued by the Judge In­ charge. He is, therefore, the one who reserves the right and power to re­ transfer the case to another magistrate. It follows therefore that where, for 10 any reason the magistrate whom the case is transferred is unable to complete the trial, the case file should be sent to the Judge In-charge for him to re-transfer the case to another magistrate. The transfer process is legal and the record should bear evidence. Taking inspiration from the import of section 214(1) of the CPA and Rule 10 of Order XVIII of the CPC, the procedure should therefore be that, the Resident Magistrate In-charge of the Resident Magistrates' Court where the magistrate whom the case is transferred for trial is stationed should remit the record (case file) to the Judge In-charge with reasons why the same should be re-transferred to another magistrate. Here in the instant case, the record is silent on what transpired that the case was re-transferred to Hon. Luambano, SRM Ext Jur for trial from Honourable Kisongo PRM Ext Jur. We need not overemphasize that transparency is fundamental in the smooth administration of justice. In all, transfer of the case by the learned Judge In-charge to Honourable Kisongo PRM and the subsequent transfer to Honourable Luambano SRM from Kisongo PRM being faulty and ineffectual, it follows therefore that the proceedings and judgment by both resident magistrates with extended jurisdictions are invalid. Should we order a re-trial turned out to be a point of departure between the learned brains for the parties. While Ms. Hassan was adamant that it will not serve any useful purpose for the appellants to be retried because the outcome would be the same as that reached earlier in the event of conviction because the appellants committed the offence when they were minors, Ms. Muchunguzi was firm that on the overwhelming evidence against the appellants, there are no yawning gaps to be filled and the trial court, in the event of conviction, will take necessary legal steps in the circumstances. We agree with the learned Senior State Attorney. On our own appreciation of the evidence on record and the serious nature of the offence committed, we are inclined to making an order of re-trial. The course to be taken by the trial court in case a conviction is to arise is, in our view, a matter to be determined by the trial court guided by law. For the foregoing reasons, exercising our power of revision bestowed to the Court under section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of our laws, we hereby nullify and quash the proceedings and judgment of the resident magistrates with extended jurisdiction as well as set aside the sentences imposed on the appellants. The record be remitted to the High Court, Dar es Salaam Registry, for its necessary action either to properly transfer the case to a resident magistrate with extended jurisdiction or deal with it. Meanwhile, the appellants to remain in remand prison to wait for a re-trial which we direct that it should be expedited. DATED at DAR ES SALAAM this 26th day of March, 20245. S. A. LILA JUSTICE OF JUSTICE I. J. MAIGE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 27th day of March, 2025 in the presence of Ms. Precious Ahmad Hassan, learned counsel for the Appellants and Ms. Agness Mtunguja, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original.