20180924 TZHC Mwanza2

' . ~··. (:'.:.V1)ilt1ii'&fc;/1:D1~~J~.:~~i.'r/:i'!,l/,~Jll!:~tt?·1~,~!Wi:1f,(1:i!\".(t:,l;;r~\?i~'[j,t\fi~:11:J1,~;,~;t~J);;:i1tE/7i.l:ri;i'1:t:w~!i!;it(,,:,::i:':'(i:{¥!/:mt•:1i::'.:;:i;:V;J(:iy,1~i(;)i}!·w~~.,;:;1:tr·1):t:;);':;:i;1,1)J\f,!~i\i!,\:(:,\:sM!F/Wli;tJl':~r;(i:;!r,;~l;:/Ji';.\lj:'((l,i):1f(~f4i\t'. ,:.tiV;,'t,'.i/~:tr

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY

ATMWANZA HC. CRIMINAL APPEAL NO. 330 OF 2017 (Original Criminal Case No. 05 of 2016 from the District Court of Misungwi District at Mwanza Hon. R.E MKISJ PDRM I/CJ EZEKIEL YOHANA & ANOTHER----------·-------------- APPELLANTS

VERSUS THE REPUBLIC ------------------------------------------ RESPONDENT JUDGEMENT' 24th September & 24th September 2018 M.M. SIYANI, J. When this Appeal came for hearing on 24/9/2018, Ms. Mwanahawa Changale the learned State Attorney who represented the Republic raised a point of law to the effect that the charge sheet before the subordinate court and which led to conviction of the Appellants was defective. Ms Changale contented that while the particulars of the offence indicates that the appellants conspired to murder one Shiyombile Nchenyeki, an offence which is triable by the High Court under section 215 of the Penal Code Ca,p 16 RE 2002 the charge sheet contained the offence of conspira~cy 1 \ \ Il .: I contrary to section 384 of the Penal Code (supra). The learned State Attorney therefore argued, that since there was variance between the offence charged and the particulars of the offence then the charge was defective. Ms Changale was also of the view that even if the charge would have indicated the proper section for conspiracy to murder which is section 215 of the Penal Code, then still the District court would have no jurisdiction to determine that offence as jurisdiction is vested to this court. It was further submitted by the learned State Attorney that the records at the trial Court indicated that the conviction was based on a cautioned statement. Hqwever the

appellants through the said Cautioned Statements were cautioned for murder c/c '196 of the Penal code and not conspiracy. It was therefore obvious that if the cautioned statement are expunged the evidence that remains will be insufficient to convict the appellant. On the other hand, the appellant had nothing to respond except praying for justice. I have gone through the records in relation to what has been submitted by Ms. Changale and I hasten to agree_ with her. The records clearly indicates 2 I that varia_nce between the statement of offence and the particulars of the same. While the statement of offence indicates the offence charged is general conspiracy under section 384 of Cap 16, the particulars of· the offence shows what the appellant committed was conspiracy to murder one Shiyombile D/O Ncheyeki of which the jurisdiction to try such offence is vested to the High Court under section 215 of the Penal Code. Indeed the charge before the District Court was not only defective but also conspirancy to murder is an offence triable by the High Court. I would have proceeded to quash the proceedings and Judgment of the District Court for that reason and order a fresh trial but I agree with Ms. Changale again that there would be no· evidence to warrant retrial. As correctly ·submitted by the learned State Attorney, the basis of conviction of the appellants by the District Court as

it can be revealed at page five (5) of the typed Judgement . . was a cautioned statements. However through the said Caution Statements the appellants were cautioned for murder and not conspirancy which they were charged with. In the circumstance th.erefore, the reasons advance suffices to dispose this appeal which is now allowed. The proceedings Judgement and sentence 3 Ii 1 I. imposed were a nullity and consequently the same , are quashed and set aside. The appellants should be set at liberty forthwith unless held for other lawful cause. It is so ordered. th DATED at M.WANZA this 24 Day o,f September 2018.

JUDGE 4