CRIMINAL APPEAL NO 830 OF 2023 PINO JOSEPH MGILANGWA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: GALEBA. 3.A.. FIKIRINI, J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 830 OF 2023 PINO JOSEPH MGILANGWA.............................................APPELLANT VERSUS THE REPUBLIC................................... .............................. RESPONDENT (Appeal from the Judgment of the Resident Magistrates' Court of Kibaha (Extended Jurisdiction) at Kibaha) (Mushi. SRM (Ext. Jur.) dated the 15th day of November, 2022 in Criminal Sessions ( EJ) Case No. 2 of 2019 JUDGMENT OF THE COURT 11th & 24th March, 2025 ISMAIL. J.A.: Pino Joseph Mgilangwa, the appellant, was arraigned in court on a charge of murder that occurred on 16th July, 2017, at Vikunge village within Kibaha District in Coast Region. The victim of the heinous act was Juliana Yohanes Mlonganile who, as facts reveal, was the appellant's spouse. It is also said that, after greasily terminating the victim's life, the appellant mutilated and made away with some of the deceased's organs, including her private parts. It is also on record that, after the act, the appellant attempted a suicide but his intention was thwarted and he was put under restraint. The Resident Magistrate's Court (Extended Jurisdiction - EJ) in which the appellant was arraigned, convicted him of murder and, in consequence, it sentenced him to death. The conviction and sentence irked the appellant hence his decision to institute the instant appeal. His appeal carries 13 grounds of appeal whose substance is, in view of what will unfold shortly, irrelevant. At the hearing, the appellant was represented by Ms. Nadia Said Karama, learned advocate, whilst Mses. Janeth Magoho, learned Principal State Attorney and Agnes Ndanzi, learned State Attorney appeared for the respondent. As we began the hearing, we called upon the learned counsel to address us on the regularity of the proceedings whose initial transfer to Magutu, SRM -EJ, was followed by another transfer to Mushi, SRM-EJ the latter of whom conducted the trial to its finality. Ms. Magoho readily conceded that it is indeed true that two transfers were issued by the High Court, and that, whereas the first transfer required Magutu, SRM-EJ to conduct plea taking and trial, she truncated his involvement to only conducting a plea taking session and preliminary hearing. This, she argued, was inconsistent with what section 256A (1) of the Criminal Procedure Act, Cap. 20 (CPA) provides. She submitted, however, that the anomaly notwithstanding, no prejudice had been suffered by the appellant, adding that the infraction was curable by applying the principle of overriding objective. She urged us to spare the proceedings from a possible censure. Ms. Karama was somewhat unsure of what the anomaly would bring. While acknowledging that something was amiss on the manner in which the transfer was issued, she urged us to go ahead with the hearing of the appeal. The counsel's brief submissions bring out one singular question touching on the propriety of the transfer of the matter to the Resident Magistrate's Court - EJ. It is quite settled that, where for this or that reason, the High Court is unable to conduct criminal proceedings, either in its original jurisdiction or as an appellate court, the conduct of such proceedings may be transferred to a resident magistrate clothed with extended jurisdiction. Where the matter to be transferred is at the plea taking and trial stage, the transfer powers are exercised under section 256A (1) of the CPA. This provision states as follows: "The High Court may direct that the taking o f a piea and the trial o f 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) o f section 173." This statutory prescription has been emphasized through numerous judicial pronouncements. In Juma Lyamwiwe v. Republic, Criminal Appeal No. 42 of 2001 (unreported) this Court guided as follows: "Section 256A (1) o f the CPA envisages that the Resident Magistrate with extended jurisdiction to whom the case is transferred will take a plea and then conduct a trial And a trial, no doubt, includes a preliminary hearing. " See also: Masana Mwita @ Marwa v. Republic, Criminal Appeal No. 194 of 2012 [2014] TZCA 2289. The record of appeal bears out that, upon commitment of the appellant to the High Court for trial, the matter was transferred to the Resident Magistrate's Court of Kibaha at Kibaha and registered as Extended Jurisdiction Criminal Session No. 2 of 2019. The judicial officer to whom the matter was transferred was A. A. Magutu, SRM-EJ, who presided over the plea taking and preliminary hearing which was conducted on 21st November, 2019 (page 34 of the record of appeal). It is notable that on conclusion of the plea taking and preliminary hearing, the learned Senior Resident Magistrate - EJ made the following specific order, at page 46 of the record of appeal: "Order: - 1. Trial to be in the next court session as shail be fixed by the [DJeputy [Registrar]. 2. Accused further [remanded] in custody. Signed: A.A. Magutu Senior Resident Magistrate, Ext. J 21.11.,2019/' What we gather is that, the decision to cede powers to handle the matter was made by the learned Senior Resident Magistrate - EJ whose mandate under the transfer instrument required her to see out his mandate by presiding over the trial of the matter to its tail end. Had this been done, need would not arise for having the matter consigned back to the High Court. It is correct to conclude, we venture to hold, that it amounted to an abdication of duties when the judicial officer on whom the power to handle the trial was conferred chose to remit the matter to the Deputy Registrar of the High Court. We abhorred this conduct in one of our recent decisions in Clement Zabron v. Republic, Criminal Appeal No. 383 of 2023 [2025] TZCA 214 wherein we held: "The Magistrate had abdicated her duty, by ordering that the next session wiii be fixed by the Deputy Registrar whiie the Deputy Registrar had no powers whatsoever to deai with such case as it had already moved to the Resident Magistrate (Ext Juris)." We are also of the fortified view that, the High Court, under whose powers the question of transfer resided, ought to have resisted the temptation of issuing yet another transfer order while aware that no reasons had been given by the predecessor Magistrate, to justify his truncation in the handling of the proceedings. But, as it were, the imperative procedural requirements were given a shrug and, as a result, the proceedings that came after plea taking and preliminary hearing suffered from a legitimacy crisis as the presiding Magistrate - EJ did not have jurisdiction to lay his hands on the proceedings. It follows, therefore, that the proceedings conducted by Mushi, SRM - EJ are a mere nullity and so is the ensuing judgment that bred the appellant's conviction and sentence. Consequently, we nullify them. The next aspect for our consideration is the way forward subsequent to nullification of the proceedings. Whereas Ms. Karama confined herself to 6 only having the matter proceed on appeal or set free the appellant who has stayed in custody for nine years for no fault of his, and said nothing about the consequence of the anomalous trial proceedings, Ms. Magoho invited us to invoke the provisions of section 4 (2) of the Appellate jurisdiction Act, Cap. 141 (AJA) and nullify the proceedings, quash the conviction, set aside the sentence, and remit the matter to the High Court for retrial. We are not oblivious to the general rule which is to the effect that, where the original trial is illegal or defective, and the interest of justice so demands, retrial must be ordered, unless facts and circumstances of a particular case militate against taking that route, see: Shaban Abdallah v. Republic, Criminal Appeal No. 255 of 2013 [2014] TZCA 2239. Conversely, it is also settled law, a legal certainty, that, where retrial offers a chance for the prosecution to fill evidential gaps in the case then the same will not be a feasible course of action. Ms. Karama expressed fears that the available testimony may be subjected to such vagary. We think that the learned counsel's fears are unreal, if not far-fetched. We agree with Ms. Magoho and hold the view that justice of the case demands that retrial should be ordered. In view thereof, we invoke the Court's revisional powers under section 4 (2) of the AJA and nullify the proceedings and judgment, quash the conviction and set aside the sentence. Further, we order that the case be remitted to the High Court for an expedited retrial. In the meanwhile, the appellant should remain in custody. DATED at DAR ES SALAAM this 21st 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 24th day of March, 2025 in the presence of the Appellant in person, via video link from Ukonga Prison and Ms. Gladness Mchami, learned Senior State Attorney for the Respondent/Republic, is hereby certified as a true c o d v of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL