hamis masesa vs the republic 2023 tzhc 21756 4 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF TABORA AT TABORA. CRIMINAL REVISION NO. 4 OF 2023 (Originating from Nzega District Court Criminal Case No. 107 of 2018)

HAMISI MASESA APPLICANT

VERSUS THE REPUBLIC ........................................................... RESPONDENT

RULING Date of Last Order: 08/09/2023 Date of Ruling: 05/10/2023 MATUMA, J This Revision proceedings were initiated by the Court suo moto after receiving a complaint letter from the applicant who is incarcerated into Uyui Prison for about five years and five months. He is in the said prison serving an imprisonment term of thirty years for the offence of Attempted Rape. The brief background leading to this Revision proceedings is that; the applicant having been convicted and sentenced was aggrieved and intended to appeal. He thus applied for proceedings and judgment for appeal purposes. Unfortunately, since then to date he h^s yet been supplied with those necessary documents so that he^^outo process his appeal. He made several reminders so that he is supplied with such documents but all ended in vain. On 18/8/2023, the applicant decided to write the complaint letter to the Judge in charge to have the fate of his intention to appeal determined and subsequently be heard on appeal against his conviction and sentence. The Deputy Registrar through correspondences in the complaint register informed the honourable Judge in charge that the original records are nowhere to be found and that she has made all the necessary steps to find the whereabouts of the case file but could not find it. The Honourable Judge in charge having been satisfied that the original records are nowhere to be

seen, directed the opening of this revision proceedings so that the parties are summoned to address on the issue. A day before the hearing date of this Revision, the Deputy Registrar was informed of the recovery of the original records. She obtained it and attached to this Revision proceedings. At the hearing of this Revision the applicant was present in person while the respondent was represented by Aneth Makunja learned State Attorney. The parties were informed of the recovery of the trial court records and supplied with it so that they could address on the way forward. The original records shows that the Applicant was convicted on his own plea of guilty. The applicant on his part had nothing to explain but lamented that his plea of guilty was instigated by threats and torture he sustained at the time he was sent to court. He argued that he was taken to court with the 2 directives to plead guilty. That he did not plea on the offence under his own free will. He thus prayed for an order of a fresh trial. The learned State Attorney on her part made some observations in the trial court record and submitted that despite the fact that the Applicant pleaded guilty to the charge, the trial Magistrate entered a plea of not guilty. Unfortunately, the trial magistrate proceeded under the procedure which are adopted when an accused pleads guilty. She was of the argument that once the

trial magistrate recorded the plea of the accused as a plea of not guilty, ought to have called the prosecution to arraign their witnesses. She finally submitted that the proceedings subsequent to the order of the court that the Applicant has pleaded not guilty were a nullity. She thus called this court to order a fresh trial. In the circumstances of the historical background of the matter supra and the submissions made by the parties, I am inclined to agree with the learned State Attorney that the proceedings of the trial court leading to the conviction of the Applicant were a nullity. The records are showing that the charge sheet having been read to the accused he entered a plea of guilty; "It is true". The trial magistrate however entered a plea of not guilty; "Court; EPNG". We don't know the circumstances prevailed to make the trial magistrate enter such a plea despite the fact that the Applicant had pleaded guilty. In fact, it is not wrong the trial court to enter a plea of not guilty even when the accused pleads guilty. The circumstances prevailing and to be recorded, the trial court may justifiably treat the plea of guilty as By entering a plea of not guilty, the trial magistrate meant he did not consider the plea of the appellant as a plea of guilty. In the circumstances the trial court should have called the prosecutions to line-up their witnesses to prove the charge

against the applicant as rightly argued by M/S Aneth Makunja learned State Attorney. As to the way forward, both parties suggested that a trial de novo be ordered. I however, instead of ordering a trial de novo, order the release of the Applicant from custody but allow the Director of Public Prosecutions to exercise his discretion whether to re-charge the Applicant afresh or not. This is because the proceedings at the trial court did not take any substantive step. I therefore quash the proceedings of the lower court and subsequently thereof set aside the sentence of thirty years meted against the applicant. I order his immediate release from custody unless otherwise held for some other lawful course. The Director of Public Prosecutions is at liberty to commence afresh the prosecution against the applicant on the same facts. In case of the re-prosecution and a new conviction, the period which the applicant has already served in prison shall be counted for in the new sentence. 4 Court; Judgement delivered in chambers in the presence of the applicant in 5