20191114 TZHC Dar es Salaam 1

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM MISC. CRIMINAL APLICATION NO. 195 OF 2017 (Originating from the Criminal Case No 842 of 2011 in the District Court of Ila/a at Samora Avenue) ERNEST KION DO ............................................................ APPLICANT

VERSUS THE REPUBLIC ............................................................. RES PON DENT

RULING Date of last Order: 31/10/2019 Date of Ruling:14/11/2019 MLYAMBINA, J. The tasking question in this criminal matter is what should be done following no tracing of the original records. While the judicial system may be fearful of opening a Pandora box for cases of this nature, it has the sole duty of considering the right of the parties to get copies of judgement, decree and proceedings. It is through such copies; the convict will have a right to challenge the conviction and sentence by way of appeal as a matter of right. It is through the same copies of judgement, decree and proceedings the prosecution side can be canvassed to defend the decision on appeal. In this matter, Ernest Kiondo has moved this court under Section 373 (1) (2) of the Criminal Procedure Act Cap 20 (R.E 2002) and 1 Section 44 (1) (a) of the Magistrates Court Act Cap 11 (R.E 2002) Seeking for the following orders: 1. That this honorable court be pleased to allow the entire application on its merits.

2. That this honorable court be pleased to call for proceedings of the convicting court vide Criminal Case No 842 of 2011. Revise and issue appropriate order (s) suiting the applicant's prayer (s).

3. That this honorable court be pleased to quash the conviction, set aside the remaining sentence and set him at liberty, failure by the subordinate court to forward the proceeding within a prescribed time.

4. That any other order (s) or relief this honorable court may deem fit and just to grant. The application was presented for filing on 16th November, 2017 and it has been supported with the affidavit of Ernest Kiondo, the applicant. The efforts to call the original records has proved futile. On 11 th day of October, 2019 Martha Mpaze District Resident Magistrate in-charge of Ilala sworn an affidavit staring inter alia: 5. That upon constant efforts to trace the record in compliance with the calling for records order✓ my office has not been able 2 , to-trace the records todate/ notwithstanding tireless efforts to trace it without undue delay.

6. That my office made efforts to communicate with national prosecution services Office Ila/a Zone/ I/ala Police and Ukonga prisons with a view to trace any record concerning the cited case in vain/ so the reconstruction of such records cannot be carried out. At the hearing of this application, the applicant in person stated that after been convicted he lodged notice of appeal on 19th December, 2012. To date he has not been supplied with the copy of judgement or proceedings. It was the applicants' submission that he was sued by a policeman. The same person investigated his case. The applicant contended that the source of problem is that he claims construction costs against that police man. Whereof, the applicant prayed the wisdom of the court be applied, the conviction and sentence be set aside. In reply, Senior State Attorney Credo Rugaju told the court that after thorough search, he noted each case must be decided on its merits as justice has to be done on both sides. Senior State Attorney Credo Rugaju went on to submit that, he has discovered in the case of Robert Madoronyo v. Repub/i~ Criminal 3 Appeal No. 486 of 2015 Court of Appeal of Tanzania at Tabora, in that case there was an incident almost the same with of this case. There was a missing document. The applicant filed a chamber application to file notice of appeal out of time the prayer was granted. When the appeal

came for hearing, the prosecution notified the court that the lower records of proceedings of the trial District Court of Bariadi and those of the High Court of Tanzania at Tabora were missing. At the same time, there was an affidavit of Deputy Registrar of the High Court showing that the records were missing. The Court of Appeal of Tanzania, held: "..... every case should be determined on its own circumstances. ✓, It was the submission of Senior State Attorney Credo Rugaju that the republic has no any records of this case. With the affidavit of Martha Mpaze, RM incharge, the reconstruction of records is impossible. In the circumstances of the above, Senior State Attorney Credo Rugaju viewed that the applicant has served almost 7 years. While knowing that the nature of the offence is Serious, Senior State Attorney Credo Rugaju submitted that there is no room if the 4 republic can facilitate to get witnesses and since the rape offence is engaging, the victim cannot get back to testify. In further opinion of Senior State Attorney Credo Rugaju, the applicant having served the sentence for seven years, he has learnt enough. Senior State Attorney Credo Rugaju, therefore, supported the application. I have considered the submissions of both sides and the available affidavits with a cautious eye. I even revisited various case laws including the case of Chirstin, Shaban, Ngahomana

{applicants) v. the Republic(Respondent Misc. Criminal Application No. 90 of 2015 High Court of Tanzania at Dar es Salaam Registry (unreported). In that case, my Brethren Madam Judge Mruke ( as she then was) was confronted with similar situation. While referring to among other case law, the case of Fatehali Manji v. the Republic (1966) 1 EA 343, Madam Judge Mruke observed: ''In my opinion, Justice in this case demands immediate release of the applicants who have been in prison for over 11 years. The trial court's decision was appealable, but for loss of the records, the applicant has been unable to appeal and there is no indication that he will be able to do so in the future. Ordering retrial at this point in the absence of proof that the 5 -~-·------------------------ trial court records were defective or illegal will be contrary to the principle in Fatehali Manji v. the Republic {Supra) and the established rule oflaw that a man shall not be vexed twice for one and the same cause which is embraced in a latin maxim nemo bis vexari debet pro eadem causa... " Earlier on, Madam Mruke in Christian case (supra) refereed to other cases including the case of Ndyanabo v. Attorney General {2001) 2 EA. 485in which this court held that: ''In Tanzania a person3" right to unimpeded access to courts can be limited only by a legislation which is not only clear but which is not violative of

the provisions of the constitution.... We have no law barring courts from providing accused persons with copies of court proceedings during the course of the trial so as to enable them to conduct an effective defense or to file an appeal // In another case of Juma Said Rashid And Yussuf Said Shirogwa v. the Republic, Misc. Criminal Application No. 44 and 45 of 2011 my brethren Madam Judge Sumari while referring to the decision of the same court in the case of Republic v. Wambura ChachaCriminal Revision No. 02 of 2008, quashed the conviction on the ground that, as the record of the original case were not traceable and it 6 was impossible to be traced, and the applicants had served half of the sentence. In the light of the foregoing, it must be appreciated that the court records are the basis of affair trial. It is the court record which initiates judicial processes such as appeal, revision or review. Principally, the right to fair trial encompasses right to appeal. It is the court records which guarantees such right. With court records here, I mean the case file containing all the proceeding, the exhibits admitted in the trial, documentary evidence, summons, pleadings, affidavit of service, judgement, orders, sentence and whatever legally filed in the court in that case. As noted earlier, judicial officers are cautious on what to do in case the original records are lost for

whatever reasons. There is no a systematic formula on what should be done. In my found view, of which I share with Senior State Attorney Credo Rugaju, each case should be treated in its own circumstances. The overriding goal should be to attain substantive justice to both parties. One, of the factors to be considered should be the nature of the offence committed, whether it is serious or not. Two, the court should consider with the judicial eye on the circumstances that lead 7 l_ to the conviction of the applicant as can be comprehended in the affidavit (if any). ·Three, the court should consider the affidavit of the judicial officer on the loss of the records and how often that judicial officer swears the affidavit of loss of records. Four, the court should find out the length of time for tracing the original records. It should be reasonable time. This will depend from one office environment to another. Five, the court should consider the duration served by the applicant as a convict of the charged offence. Six, the court should consider the possibility of getting some copies of records for reconstruction purposes. By taking the inter alia above factors into consideration, I 'm of found view that the duration served by the applicant is enough for him to regret on what he did (if any). The affidavit of the RM'S in charge is strong enough that reconstruction of records

is impossible. The same is shared by the Respondent's State Attorney. The notice of appeal lodged by the applicant herein proves that the applicant had shown interest of appeal but the court itself curtailed such right by not availing him with the complete records. 8 In the end result, this application is allowed, the conviction meted against the applicant is quashed and the un-served part of sentence is set aside. The applicant be set at liberty forthwith unless otherwise lawfully held for other cause. Orders accordingly.

LYAMBINA J E 14/11/201 Ruling delivered and dated 14th day of November, 2019 in the presence of the applicant and Senior State Attorney Gedo Rugaju for the respondent. Right of Appeal explained.

MLYAMBINA OGE 14/11,~~- 9