CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM CRIMINAL APPEAL NO. 25088 OF 2024 (Arising from the Judgement of the District Court of Kinondoni (Hon. H.I. Mwailolo, PRM) in Criminal Case No. 254 of 2023 dated 25th July 2024) _________ GEORGE GODFREY KIBERITI ……..…….…..………....APPELLANT

VERSUS REPUBLIC……………………………………..…..……...RESPONDENT

JUDGEMENT Date of last order: 10th December 2024 Date of Judgement: 17th December 2024 MTEMBWA, J.: This Appeal stems from the decision of the District Court of Kinondoni in Criminal Case No. 254 of 2023, where the Appellant was arraigned for an unnatural offense contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16, R.E 2022. It was alleged that on 28th June 2023, at Mbezi Juu kwa Barikiwe area within Kinondoni District of Dar es Salaam Region, the person known as Abdallah Athuman (not the Appellant) had carnal knowledge of LN, a girl aged five (5) years against the order of nature. The Appellant pleaded not guilty to the charge. Consequently, the prosecution fronted five (5) witnesses and tendered two (2) exhibits. The 1 Appellant (the accused by then) relied on his sworn testimony and tendered no real or documentary exhibit. Having evaluated the evidence adduced during hearing, the learned trial Principal Resident Magistrate was satisfied that the offense to which the Appellant charged with was proved beyond reasonable doubt. As such, she proceeded to convict and sentence him to life imprisonment. Dissatisfied, the Appellant has laid before this Court the following grounds of appeal and I quote in verbatim; 1. That, the trial court erred in law and facts to convict the appellant relying on incompetent evidence.

2. That, the trial court erred in law and facts to convict the appellant without taking into account that the appellant was subjected to on unfair trial.

3. That, the learned trial magistrate erred in law and facts to convict the appellant relying on contradictory, improbable and insufficient prosecution evidence.

4. That, the learned trial magistrate erred in law and facts to convict the appellant in a case that was not proved to the required standards.

5. That, the learned trial magistrate erred in law and facts to the appellant to a custodial sentence contrary to the requirement of law. When the matter was called before me for orders on 15th October 2024, the Appellant appeared in person while Mr. Cathbert Mbilingi, the learned State Attorney, represented the Respondent. By consent, the 2 parties agreed to argue this Appeal through written submissions. Having reviewed the records, I am satisfied that the parties adhered to the agreed schedule. When I was going through the testimony of the Appellant at the trial Court, I noted his concern during examination in chief couched as follows; I was charged to rape a five-year girl namely LN. To date I am under custody since I have no relative in Dar es salaam. As regards to the charge sheet it is recorded that Abdalla Athuman is the one who raped the victim and not me. (emphasis supplied) When cross-examined by the Public Prosecutor, the Appellant insisted as follows; The charge sheet is charging Abdalla Athuman and not me. Yes, the memorandum of facts mentioned my name and not Abdallah. The victim is LN and not Lilian. During the memorandum of facts, they did not tell me about my age. My mother has mental illness hence no one to bring the birth certificate. I cross examined the witnesses on the point that I am not the one who committed the offence. (emphasize supplied) From the

testimonies above, it is crystal clear that the Appellant was complaining about two issues: one, that the charge did not mention him as a suspect; rather, it mentioned Abdallah Athuman; and two, that the charge mentioned LN as the victim and not PW1. The Appellant did not 3 end there. In his Written Submission in Chief, he argued as follows; The charge sheet that was read over to the appellant did not name the appellant as the offender as required by part 4 of the 2 nd schedule to the CPA. The particulars of offence is written as, that: "Abdallah Athumani, on 28th day of June, 2023 at Mbezi juu kwa Barikiwe area within Kinondoni District in Dar es Salaam Region did have carnal knowledge of one LN a girl of five (5) years old against the order of nature" The charge sheet was never amended, no evidence was given in court to prove that Abdallah Athumani is one and the same as the appellant herein. Not only that but when the arresting officer was called to testify as PW3 he identified the appellant as Issah Yassin Kigwaride as the person he arrested and the one that was on court when he testified on 19 June 2024. No evidence was given to reconcile the three names in this case, that is the appellant's name, Abdallah Athumani and Issah Yassin Kigwaride. The Appellant raised another concern regarding the testimony of the arresting officer (Mustapha Joseph), who testified that he knows

the Appellant as Issah Yassin Kigwaride. He complained further that the prosecution had not made any efforts to harmonize the appellant’s names. It was not established whether the Appellant’s names are George Godfrey Kiberiti, Abdallah Athuman, or Issah Yassin Kigwaride. He argued further that there were no amendments to the Charge at the trial Court. Although the first two concerns were raised at the trial, nothing was done by the prosecution. Regrettably, the trial Court proceeded to determine the 4 matter without addressing this issue in its Judgment. Similarly, the learned state attorney opted not to reply to anything regarding the first two concerns by the Appellant. For this reason, I am constrained to examine whether the charge was adequately drafted sufficiently to inform the Appellant of the accusations he was facing to enable him to prepare his defense. For reference, I reproduce the Charge;

IN THE DISTRICT COURT OF KINONDONI

AT KINONDONI CRIMINAL CASE NO. 254 OF 2023

REPUBLIC

VERSUS

GEORGE GODFREY KIBERITI

CHARGE

STATEMENT OF THE OFFENCE UNNATURAL OFFENCE: Contrary to section 154(1) and (2) of the Penal Code [Cap 16 RE 2022]

PARTICULARS OF OFFENCE ABDALLAH ATHUMANI, on 28th day of June, 2023 at Mbezi juu kwa Barikiwe area within Kinondoni District in Dar es Salaam Region did have carnal knowledge of one LN a girl of Five (5) years old against the order of nature. Dated at Dar es Salaam this…………….day of…………………...2023 Signed:

STATE ATTORNEY As can be gathered from the charge above, the one suspected of having committed the offense is ABDALLAH ATHUMAN, not GEORGE 5 ATHUMAN KIBERITI (the Appellant). The victim's name is LN, a five-year- old girl. That is where the appellant's concern rests. The records are silent on whether any amendment was made to include the appellant's name as a suspect. Similarly, there is no evidence that the two names referred to one person, the Appellant. The unexpected and worst thing is the evidence of Mustapha Joseph (PW3), who testified that the Appellant is well known to him as he happened to arrest him more than nine times. He mentioned his name as Issah Yassin Kigwaride. It is a salutary principle of the law that has gained popularity that the Charge must contain information, like the name of the offender or suspect and victim, to enable the accused person to understand the charge he is going to face to enable him to prepare himself with his defense. Section 132 (1) of the Criminal Procedure Act insists on that. It reads as follows:- Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged From above, it is clear that the Charge

Sheet has two shortcomings: one, failing to name the Appellant in the particulars of the offense as the suspect to the offense charged, and two, failing to name properly the name of the PW1 (victim). As revealed above, the person named to have 6 committed the offense is Abdallah Athuman, not the Appellant. Similarly, the victim is named as LN, a name different from the victim. In such circumstances, it cannot be said that the Appellant was fairly tried on the charge that sufficiently informed him of the accusation he was facing for purposes of preparing himself with the defense. As alluded to by the Appellant, the correct recourse was to amend the charge. It must be noted that in formulating a statement and particulars offenses, investigators and prosecutors are duty-bound to foresee and avoid including unwarranted and/or unnecessary words that may attract objections. The particulars of the offense must disclose all key ingredients in compliance with sections 132 and 135 of CPA. I should remind of the need to adhere to “the four W principle.” In Liku Charles Alias Ngereja vs. Republic, HC Criminal appeal No. 192 of 2013, High Court of Tanzania at Iringa, the Court said; The statutory functions of investigators and prosecutors provide them with a wide latitude of knowing beforehand the legal value of crime information gleaned before they file charges or information in Court.

These officers should, therefore, endeavor to satisfy the “four W principle,” which is mostly followed in drafting particulars of offense. When a triable statement of offense is chosen, the second component in the documents should at least particularize the offense by disclosing who is the accused. When did he do the unlawful act of omission? Where did he do that? How did he do it, and to whom? 7 (emphasis supplied) From what I have thrived to endovour, I hasten to say that the Appellant was prosecuted on the well-drafted charge. It did not mention him as a suspect. Similarly, the name of the victim in the particulars of the offense does not belong to PW1 (the victim). There was no evidence to harmonize the names ABDALLAH ATHUMAN and GEORGE ATHUMAN KIBERITI (the Appellant). It was not easily established whether the victim's name in the particulars offense (LN) also belongs to PW1 (the victim). The defective charge, therefore, rendered the accusations against the Appellant unproved. Having so observed, the next issue is what will be the fate of the Appellant with regard to the offense charged. I was prepared to order a retrial, but it is impractical when the charge is defective. The defunct Court of Appeal for East Africa, in Fatehali Manji vs. Republic (1966) EA 343, noted that; In general, a retrial will be ordered only when the original trial was illegal or defective/ it will

not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it. 8 In Mayala Njigailele vs. Republic, Criminal Appeal No. 490 of 2015 (unreported), the court noted; Normally an order of retrial is granted, in criminal case, when the basis of the case namely, the charge sheet is proper and is in existence. Since in this case the charge sheet is incurably defective, meaning it is not in existence, the question of retrial does not arise. While down to the end, I will not order a retrial on the defective charge sheet. That alone suffices to dispose of this appeal without determining the remaining grounds of appeal because they are premised on the conviction and sentence meted out from the defective charge. That said and done, the appeal is allowed. The conviction and sentence meted out against the Appellant is hereby quashed and set aside. I order that the Appellant be released from the prison forthwith unless lawfully held. I order accordingly. Right of appeal fully explained. DATED at DAR ES SALAAM this 17th December 2024. H.S. MTEMBWA

JUDGE 9