CRIMINAL APPEAL NO 831 OF 2023 AMIDU MBEGU VULU ANOTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: GALEBA. J.A.. FIKIRINI, J.A. And ISM AIL J.A J CRIMINAL APPEAL NO. 831 OF 2023 AMIDU MBEGU VULU............ ..........................................-..........1st APPELLANT AMIRI ABDALLAH CHIWAKA.................................................... 2nd APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the Judgment of the Resident Magistrates' Court of Dar es Salaam (Extended Jurisdiction) at Kisutu) fRuboroaa, PRM (Ext. Jur.1 dated the 16th day of November, 2022 in Criminal Sessions Case No. 31 of 2019 JUDGMENT OF THE COURT H id & 1 9 th M a r c h / 2 0 2 5 ISMAIL. J.A.: The appellants are a disgruntled duo who are before us to impugn the decision of the Resident Magistrate's Court (Extended Jurisdiction - EJ), following a conviction of murder of a certain Mr. Gervas Mgonja (the Deceased), who took his last breath on 12th January, 2016, at Zingiziwa area in Ilala, Dar es Salaam. Following the conviction, a death sentence was imposed on the appellants. The record reveals that, on the fateful day, the deceased, along with a person identified by the name of Fundi, and Abiniel Betwel Pori (PW4) were on a drinking spree. They had just had a local brew at Ilima Mahoza's (PW1) home. Feeling thirsty for more, the trio left for another local brew shop. Along the way, the appellants appeared and started to hurl insults at Fundi, accusing him of having an affair with, PW1, the 1st appellant's alleged sexual partner. The altercation brought in the deceased whose 'wise counsel' landed him in trouble. He advised the 1st appellant to stop fighting over a 'barmaid7 for whom he had paid no dowry. This enraged the 1st appellant who wasted no time in unleashing terror on the deceased. He hit him with a large stick on the head. The 2nd appellant allegedly joined the fray and lent support to the 1st appellant. As hell broke loose and the deceased hit the ground, PW3, PW4 and Fundi, all of whom were allegedly at the scene of crime, scampered for safety, never to return again. In their testimony, PW3 and PW4 alleged to have identified the assailants after being assisted by a solar powered light that illuminated the scene of crime. PW1, who was about 20 metres from the scene of crime, testified that she heard the sound of the brawl but she kept off. Noting that the deceased had gone missing, PW4 and the deceased's wife began a search that took them to a pit, located 70 metres from the scene of crime. This is where the deceased's body lied, lifeless. A postmortem examination carried out by Dr. Edda Vuhahula, PW2, revealed that the deceased's body carried multiple bruises. His stomach was swollen while his liver and spleen were ruptured. A police swoop led to arrest and arraignment of the appellants. The trial Magistrate took the view that the appellants were guilty. He shrugged off the appellants' defence of alibi\ and convicted and sentenced them to death. Bemused by the decision, the appellants instituted the instant appeal. 12 points of consternation have been raised but, for reasons that will be apparent in the course of the decision, we shall not reproduce the substance of the grounds of appeal. At the hearing of the appeal, the appellants were, respectively, represented by Mr. Mussa Mhagama and Ms. Precious Hassan, learned counsel, whilst the respondent Republic enjoyed the services of Mr. Eric Shija, learned Senior State Attorney, assisted by Ms. Amina Ngalula, learned State Attorney. Before we delved into the substance of the appeal, we invited the counsel to address us on the propriety of the transfer order that moved 3 the matter from the High Court to the Principal Resident Magistrate (PRM, EJ). This was in view of the fact that, whereas the record indicates (p. 53 of the record) that the matter was transferred to Mtega, PRM EJ, who conducted the preliminary hearing, the trial proceedings were presided over by Ruboroga, PRM EJ whose succession was not explained out. Mr. Shija, who addressed us ahead of his colleagues, conceded that the conduct of the proceedings by Ruboroga, PRM EJ was shrouded in some illegality as he did not have powers to conduct trial proceedings subsequent to transfer of the matter to Mtega, PRM EJ. He argued that, in view of the said irregularity, the proceedings presided over by Ruboroga, PRM EJ were a mere farce, deserving nothing short of being chalked off. He urged us to order, in consequence, that the matter be remitted to the High Court for retrial. Mr. Mhagama partly agreed with his counterpart on the flawed transfer. He, however, took a divergent view on the next course of action. In his contention, retrial would not be a feasible option as it would hand the prosecution an opportunity to mend its case and harmonize the discrepancies in the testimony. He particularly singled out PW4's oral testimony which is allegedly at variance with his witness statement found at page 81. He argued that, whereas in the latter it was stated that the 1st appellant used a 'panga' and a stick to attack the deceased, the oral testimony and that of PW1 showed that only a stick was used to administer the beating. This, he said, was in tandem with the contents of the postmortem examination report, exhibit PI, that gave the nature and extent of injuries sustained, and that none indicated that any sharp object was used. He prayed that his client be set free. Ms. Hassan was equally critical of the manner in which the case came into the hands of Ruboroga, PRM EJ. She argued that matters of assignment touch on jurisdiction and that, since the transfer process was flawed, the trial Magistrate did not have jurisdiction, and what came out of the proceedings is an abhorrent travesty. She urged the Court to annul the proceedings and set free the 2nd appellant who has spent 9 years of incarceration. She maintained that retrial would only serve to perpetuate her client's suffering for no fault of his. In rejoinder, Mr. Shija argued that, as against the 1st appellant, retrial was justified because PW4's evidence proved that the 1st appellant attacked and killed the deceased, and he was identified at the scene of crime. He further submitted that there is also a cautioned statement 5 (exhibit P3) found at pp. 134 and 135. He discounted the alleged contradictions, arguing that the trial court's decision against the 1st appellant was solely founded on the testimony of PW4. Regarding the 2nd appellant, Mr. Shija argued that the testimony of PW4 clearly stated that he did not see the 2nd appellant attack the deceased. He contended that, the 2nd appellant's mere presence at the scene of crime was not enough to rope him into the alleged wrong doing. He urged us to find the 2nd appellant not guilt and allow the appeal to that extent. As unanimously submitted by learned counsel, the law permits transfer of the proceedings triable by the High Court to a Court of a Resident Magistrate with extended jurisdiction. This is in terms section 256A (1) of the CPA which stipulates as hereunder: "The High Court may direct that the taking o f a plea and the tria l o f an accused person com m itted for tria l by the High Court, be transferred to, and be conducted by a resident m agistrate upon whom extended jurisdiction has been granted under subsection (1) o f section 173." Pursuant to this provision, a magistrate to whom the transfer is made must ensure that he presides over the plea taking and see out the entire proceedings, unless there is a strong, compelling reason for not taking the proceedings to the end. The reason must be apparent on the record. What this implies is that this assignment is non-transferable to another magistrate. It is personal to the transferee. This position was encapsulated in the case of Nasra Hamisi Hassan v. Republic, Criminal Appeal No. 545 of 2017 (unreported), in which the Court quoted its own reasoning in Msana Mwita @ Marwa v. Republic, Criminal Appeal No. 194 of 2012 (unreported), and held as follows: "We w ill hasten to add that the PRM EJ to whom the case has been transferred as above m ust take the plea and conduct the tria l to com pletion unless for some reason, which m ust appear on the record, the PRM, EJ who had started to deal with the m atter is unable to proceed with it to the end. Therefore; like the proceedings before Mtoteia PRM, EJ the proceedings before Kaiombola were a n u llity " Significantly, the foregoing position was built on our earlier decision in Juma Lyamwiwe v. Republic, Criminal Appeal No. 42 of 2001 (unreported) in which we propounded as follows: "Section 256A (1) o f the CPA envisages that the Resident M agistrate with extended jurisdiction to whom the case is transferred w iii take a plea and then conduct a trial. And a trial, no doubt, includes a prelim inary hearing." It follows that the proceedings conducted subsequent to the plea taking and preliminary hearing before Mtega, PRM-EJ were in violation of the law as the presiding officer was not clothed with powers to do so. They cannot, as all counsel alluded to, be allowed to see the light of the day, and the inescapable consequence is to nullify them. While this aspect has been addressed with relative ease, the remaining part is on the way forward. We have held, time and again, that, where the irregularities are, as is the case here, of fatal effect, the inevitable consequence is to chalk off the discrepant part of the proceedings. It is also settled law that, upon quashing the proceedings as a result of the illegal or discrepant trial, retrial should be ordered. The exception to this golden rule, however, is where, as a result of insufficiency of evidence, the conviction is set aside, or where genuine fears of possible patching up of evidence with a view to filling the gaps in the prosecution's case exist - see: Shaban Abdallah v. Republic, Criminal Appeal No. 255 of 2013 (unreported); and Bahati Malimi & Another v. Republic, Criminal Appeal No. 324 of 2022 [2024] TZCA 1219. Mr. Shija has conceded, and we fully subscribe to his contention, that a paltry or no evidence was led to prove the 2nd appellant's culpable role in the deceased's cause of demise. PW4's testimony which constituted the basis of conviction placed the responsibility squarely on the 1st appellant, while throwing no blemishes at the 2nd appellant, implying that a case against 2nd appellant was not made out. It follows that, the call to have the 2nd appellant exonerated is legitimate and we accede to it. We find him not guilty of the offence and order that he be immediately released unless held for other lawful reasons. With respect to the 1st appellant, we take the view that, in the circumstances of this case, retrial is the right call, and we consider the fears of possible filling of evidential gaps misplaced and imaginary. Accordingly, we direct that the record be remitted to the High Court for retrial of the 1st appellant. In sum, save for the finding on the 2nd appellant, in exercise of powers under section 4 (2) of the Appellate Jurisdiction Act, we nullify and quash the trial proceedings conducted by Ruboroga, PRM EJ, quash the resultant conviction, and set aside the sentences, and order the retrial of the 1st appellant. While awaiting the retrial which should be expedited, the 1st appellant shall remain in custody. DATED at DAR ES SALAAM this 18th day of March, 2025. Z. N. GALEBA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 19th day of March, 2025 in the presence of the 1st and 2nd Appellants in person unrepresented and Mr. Ditrick Mapunda, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 10