Catherine Kasonde

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA CRIMINAL APPEAL NO. 000015630 OF 2024 CATHERINE KASONDE .............................. COMPLAINANT / APPELLANT / APPLICANT

VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT

JUDGMENT MATUMA, J In the District Court of Ilemela District at Ilemela, the appellant was charged and convicted for two counts of Forgery contrary to sections 333, 335(a), and 337 of the Penal Code, Cap. 16 R.E 2022. She was also charged and convicted for one count of Obtaining money by false pretense contrary to section 302 of the same Code supra. In the first count she was alleged to have forged several gate entry receipts with different serial numbers and in the second count she was alleged to have forged several bufee coupon receipts with different serial numbers while in the third count, she was alleged to have obtained a total of Tshs. 7,600,000/= with intent to defraud her employer after selling forged gate entry and bufee coupon receipts. In each of the three counts supra, she was sentenced to serve three years custodial term which was ordered to run concurrently and in addition thereto she was ordered to repay the victim Hotel Malaika Beach Resort the alleged stolen money. The appellant was aggrieved with both the conviction and sentence hence this appeal coached with five grounds of appeal. At the hearing of this appeal the appellant was present in person and was represented by Mr. Lugano Kitangalala and Mr. Michael Mlekwa Dudu learned advocates while the Respondent Republic was represented by M/S Brenda Mayala and Mr. John Simon Joss learned State Attorneys. Page. 1

Hon. ATHUMANI MATUMA Before we could hear the appeal on merits, I invited the parties to address me on whether the appellant was properly charged and thus fairly tried. That is whether the charge sheet against the appellant was not bad for duplicity and thus violated the law. Both parties were in agreement that indeed the charge sheet in the instant matter was defective for duplicity and thus it rendered the proceedings of the trial court a nullity. They made several citations to the provisions of the Criminal Procedure Act and decided case laws. On my part and being guided by the Court of appeal in the case of Abdallah Mohamed @ Killo & 2 Others versus The Republic, Criminal Appeal no. 9 of 2012, CAT at Tanga, I am of the settled mind that the appellant was not properly charged and thus it cannot be said that she was fairly tried. This is because the alleged forgeries of several gate entry receipts were lumped into a single count and those bufee coupon receipts were also dumped into a single count. That is what we call duplicity of the charge sheet. In the case of Abdallah Mohamed @ Killo supra, the court of appeal held that the charge lumping different offenses into one count renders the charge to be an omnibus. As rightly observed by both parties, it was important for the charge sheet to specify the particulars of each alleged forgery in respect of each receipt on its

separate count. Section 133(1) of the Criminal Procedure Act reads: “Any offences may be charged together in the same charge or information if the offences charged are founded in the same facts or if they form or are a part of, a series of offences of the same or similar character.” Under the circumstances, it was not bad for the charge sheet to be drawn against the appellant for all the alleged forgeries and obtaining money by false pretence because it is alleged that the said offenses were committed in the same fact and formed a series of offenses in the same or similar character. But it was wrong and against the provisions of section 132 (2) of the CPA when each alleged forgery for each receipt was not made a distinct offence with its own count. The said provision says: “Where more than one offence is charged in a charge or information, a description of each offence charged shall be set out in a separate paragraph of the charge or information called a count.” The rationale for charging an accused person with a specific charge lies in the principle of fair hearing as rightly submitted by learned counsels for both parties. The accused person must know the specific charge he is facing so that he can prepare his or her defence. Page. 2 Hon. ATHUMANI MATUMA This cannot be accomplished where the accused person faces an omnibus charge like in this appeal. The appellant is alleged

to have forged different receipts which have been lumped in the two counts contrary to the cited provisions. In the case of Kauto Ally Vesrus R, [1985] T.L.R. 183 the Court held that lumping of separate and distinct offenses in a single count may render a charge bad for duplicity. That was as well held in the cases cited by the appellants’ advocates and supported by the learned State Attorneys. These are Emmanuel Magembe & 3 Others versus The Republic, Criminal Appeal no. 35 of 2018 (CAT) and Asifiwe Exson Mbughi & Another versus The Republic, Criminal Appeal no. 150 of 2022 (HC). That being the case, I do hereby allow this appeal by nullifying the proceedings of the trial court and quashing the judgment emanating from it. Consequently, the sentences meted out against the appellant and the order for payment of the alleged stolen money is also set aside. As to what should be the way forward, the parties did not agree. While the learned State Attorneys pressed for an order of a retrial, the learned counsels for the appellant pressed for a total acquittal. Having considered the circumstances surrounding this appeal, and the fact that theft is also alleged against the appellant and the trial court had ordered the repayment of the alleged stolen money, I find that the interest of justice demands that the appellant be retried at the discretion of the Director of Public Prosecutions.

It is not in the interest of justice to order total acquittal in the circumstances that we have not dealt with the merits or otherwise of the evidence on record and there are strong allegations of theft upon which the victim was ordered to be compensated. I therefore order an immediate release of the appellant from custody unless otherwise held for some other lawful cause but the DPP is at liberty to reconsider whether to charge the appellant afresh or not. In case the appellant is recharged and convicted, the period he has already served shall be accounted for in the new sentence to be entered against her. It is so ordered. Dated at MWANZA this 24th of March 2025 . A. MATUMA

JUDGE OF THE HIGH COURT Page. 3 Hon. ATHUMANI MATUMA