haki kapeji vs john mabeyo 2009 tzhc 191 7 october 2009

IN THE HIGH COURT OF TANZANIA AT MWANZA (PC) CRIMINAL APPEAL NO. 20 OF 2008 (From the decision of the District Court of Magu at Magu) HAKI K A P E JI..................................................... ’. APPELLANT VERSUS 1 JOHN M A B EY O .................................................. .RESPONDENT JUDGMENT 31/7/2009 & 7/10/2009 NYANGARIKA, J. The respondent was charged with and convicted of Using abusive language c/s 89(1) (a) of the Penal Code at Kalemela Primary Court, and sentenced to pay a fine of Shs. 100,000/= or Six month imprisonment. He appealed successfully to the District Court of Magu at Magu (herein after referred to as the First Appellate Court) where the^entire proceedings of the Primary Court was quashed and the Judgment was set aside. The learned First Appellate Magistrate was of the view that tfie. charge was not read and explained to the respondent before he entered his plea as mandatory required by the law. It is from the Judgment of the First Appellate Court that the appellant has preferred this appeal to this Court. When the appeal was called for hearing both parties appeared in person. The appellant has filed 3 grounds of appeal and his main complaint was that the First Appellate Court made material error by holding that the charge before the Primary Court was not read to the 'I !1 -i11, respondent as required by the Law. He said that jthe decision pfrttte First Appellate Court is not supported by the record of the Primary • Court. The appellant further complained that, even if that was true, that was not his duty but it was the duty of the Primary Court and at best a retrial should have been ordered by the First Appellate Court. On the other hand the respondent was very brief and supported the finding of the First Appellate Court. After hearing this appeal, I revisited the grounds of appeal afltT studied the Primary Court Proceedings and Judgment being appealed » I -n I ;;! I * I : ' i,!i against. j * •' • ;' I have carefully examined the record of Proceedings of the Primary court and found that on 1/3/2007 the charge was read to the respondent and a plea of not guilty was entered by the Primary court. The record also show that hearing of the case commenced on 29/5/2007 without reading over and explaining to the respondent the charge he was facing in his own language. It is true that when the charge was read for the first time on 1 * 1 1/3/2007, the case was presided over by Hon. M. 0. Kiri (PCM) but i i i • -I :i when the trial commenced, the case was presided over byS. M .! ;!i Bwire (PCM). It was therefore the duty of the trial Court to ensure that the respondent is reminded of the charge by reading it to him and explaining it to the language which he understands before recording his plea before Hon. Bwire PCM. The First Appellate Court should not have penalized the appellant for failure of the trial Court to exercise its duty of reading and explaining the contents of the charge to the respondent before the trial Court. The effect of failure to read and explaining the charge to ah accused person if occasioned a failure of justice is an order for retrial and not otherwise. Therefore after the First Appellant Court had quashed the entire proceedings and set aside the Judgment of the Primary Court, it was supposed to make an order for retrial as I hereby do. The appeal is party allowed to the extent explained above but I make an order that the Primary Court should hear the case afresh according to the law. • \ K. M. Nyangarika JUDGE AT MWANZA 7 October, 2009 4