BALYAHELE

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA CRIMINAL SESSIONS CASE NO. 118 OF 2022

REPUBLIC

VERSUS 1. MATEMANI S/O BALYEHELE @CHARLES 2. DANIEL S/O SIYANTEMI 3. SAMWEL S/O COSMAS

RULING 22nd & 25th November, 2024 KAMANA, J. When the matter was set for a hearing, Mr. Adam Murusuri, learned State Attorney representing the Republic, informed this court that the committal court did not list prosecution witnesses and exhibits as required by section 247 of the Criminal Procedure Act, Cap. 20 [RE.2019]. He asked this court for guidance on the matter. Mr. Ditrick Ishabairu, learned Counsel for the first accused, supported Mr. Murusuri’s argument. He asked this court to refer the matter to the Court of Appeal for revision. He asked this court to follow the position of the Court of Appeal in the case of Republic v. Asafu Tumwine, Criminal Revision No. 1 of 2006-CAT (Unreported). Mr. Matinde Kichele and Mr. Mainde Chacha, learned Counsel for the second and third accused, concurred with Mr. Ishabairu’s position. I have gone through the committal proceeding and agree with the legal minds that the committal court did not list the prosecution witnesses and exhibits. This offends the provisions of section 247 of the Act. However, though the provisions of section 247 were couched in mandatory terms, I am of the view that the omission to list the witnesses and exhibits is curable in the circumstances of this case as the names of the witnesses and exhibits were mentioned when the statements of the witnesses and the contents of the exhibits were read and explained to the

accused. The essence of committal proceedings is to ensure that the accused is aware of the evidence against him to prepare his defence. It should be noted that there are circumstances in which the prosecution conceals names of witnesses to protect their identity and that has not been fatal provided the statements of those witnesses are read and explained. Concerning the case of Asafu Tumwine (Supra), unlike this case in which the accused were properly committed, in the cited case, the accused were not committed. It was for that reason, the matter was referred to the Court of Appeal as there was an order from the High Court ordering the trial which could not be set aside by the same court. Order accordingly. DATED at MWANZA this 25th November, 2024.

KS KAMANA

JUDGE