ibrahim hassan kahogo augustine waduma vs republic 2022 tzhc 15429 21 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY)

AT DODOMA DC CRIMINAL APPEAL NO.47 OF 2022 (Original Criminal Case No.243 of 2019 of the District Court of Dodoma at Dodoma) IBRAHIM HASSAN KAHOGO @ AUGUSTINE WADUMA.................... APPELLANT

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

JUDGEMENT 26/10/2022 & 21/12/2022 MASAJU, J. Before the District Court of Dodoma, the Appellant, Ibrahim Hassan Kahogo @ Augustine Waduma, was charged with, tried and convicted of nine counts to wit; four counts of forgery contrary to section 333, 335(a) and 337 of the Penal Code [Cap. 16 RE 2002], three counts of uttering false documents contrary to section 342 and 337 of the Penal Code [Cap. 16 RE 2002], one count of impersonation contrary to section 369 (1) and 35 of the Penal Code [Cap. 16 Revised Edition 2002] and one count of giving false information to person 1 employed in the public service contrary to section 122(a) of the Penal Code [Cap. 16 Revised Edition 2002]. He was sentenced to serve fourteen years and six months imprisonment in default of payment of a fine or fourteen years imprisonment in case he pays fine in respect of the sixth count. Aggrieved by such decision of the trial Court the Appellant has come to the Court by way of an appeal. The Appellant's Petition of Appeal comprises eight (8) grounds of appeal. However, before the appeal was heard, the Appellant prayed to file four additional grounds of appeal. Of essence in this judgement is his first ground of appeal which questions the propriety of the successor magistrate in conduction of trial, thus; "7. That, your honour Judge the learned trial Magistrate erred in law and fact by convicting the appellant

without considering that it is a trite law that whenever Magistrate or Judge changes in course of hearing, the reasons for that change must be recorded and communicate to the accused person as it was held in case of JUMA KUYANI & MUSA 2 DAUDI VS. REPUBLIC, CRIMINAL APPEAL NO. 525 OF 2015 (unreported) the court of appeal insisted that; "in terms of Section 214 (1) of the CPA, reasons must always be given and recorded, in case of change of trial magistrate even for purpose of passing sentence!' the case at hand lack such requirement'(s\Q) When the Appeal was heard in the Court on the 26th day of October 2022, the Appellant appeared in person and prayed to adopt his grounds of appeal together with the additional grounds of appeal so that it form part of his submissions in support of the appeal before the Court. The Respondent Republic was represented by Ms. Bertha Kulwa, the learned State Attorney, who contested the appeal in its entirety save for the sentences which she advised the Court that they should run concurrently. In response to the first ground of appeal, the Respondent Republic argued that section 214(1) of the Criminal Procedure Act [Cap 20 RE 2019] was complied with accordingly where there was change of 3 magistrate between Hon. Lushasi SRM and Hon. Katema SRM as so stated on the record of proceedings. She stated that the Appellant's advocate agreed to proceed with

the trial upon change of magistrates as so evidenced on the record of proceedings. The Respondent Republic further submitted at length against all the grounds of appeal and eventually prayed the Court to dismiss the entire appeal in regard to the conviction and sentence save that the Court order the sentence to run concurrently. At last, the Appellant made a brief rejoinder and reiterated his prayer that the appeal be allowed. From the record of proceedings, the following is partly what transpired in the trial Court rightly before and during the succession of the case in the trial Court: Date: 14/1/2022 Coram: Hon. A. E. Katemana- SRM Parties: Absent CC: Elizabeth Court: Following the promotion of Hon. Lushasi SRM the case file is reassigned to Hon. A. E. Katemana-SRM A. E. Katemana- SRM 14/1/2022 4 The case was thereafter adjourned several times until on the 30th day of March 2022, thus: Date: 30/3/2022 Coram: Hon. A. E. Katemana- SRM PP: Magiri CC: Tusekeiege Accused: Present Mr. Francis Stephen for the accused: The case is for Dhg and I am ready. Sgd A. E. Katemana-SRM 30/3/2022 Magiii S/A We are aiso ready to proceed. Sgd A. E, Katemana-SRM 30/3/2022 Court: The accused and his advocate are addressed in terms of section 214 of CPA and states that we are ready to proceed from where the case has reached. Sgd A. E. Katemana-SRM 30/3/2022 Perusing the above record of proceedings

of the trial court, the Court agrees with the Appellant on that the succession of the magistrate was contrary to section 214(1) of the Criminal Procedure Act [Cap 20, 5 RE 2019]. This is because on the 14th day of January 2022, when the trial court successor magistrate recorded that the case file has been reassigned to him because his predecessor magistrate has got a promotion the parties were not before the trial court. Thus, it cannot be assumed that such information was communicated to the parties accordingly taking into account that the case went adjourned several times and by 30th day of March, 2022 when the defence case proceeded, it was about past two months. It is also not clear, if on 30th day of March, 2022 the trial court informed the parties on the re-assignment it had made, what were the specific parties' particularly the Appellant's and his learned counsel's response if at all they consented the case to proceed with successor magistrate at that stage upon allegedly being addressed in terms of Section 214 of the Criminal Procedure Act. [Cap. 20 RE 2019]. The record of proceedings as reflected herein above is silent on all that. Simply stated, the Appellant was not informed as to why there was a new presiding magistrate rather recorded to have accepted continuing with the trial. Non-compliance of section 214 (1) of the Criminal 6 Procedure Act [Cap 20 RE 2019]

materially prejudiced the Appellant. Needless to observe, the Court opines that ordinarily promotion like in the circumstances of this case, that does not involve change of one's duty station, change of tittle /office responsibilities only, is in itself not a sufficient reason to warrant re-assignment of a pending case under section 214 (1) of the Criminal Procedure Act [Cap 20 RE 2019], in particular under the circumstance of this case where the former trial magistrate had presided over the entire prosecution case. That being the case, the modality of succession of the trial magistrate constituted a serious procedural irregularity which renders the proceedings of the trial court and the judgement thereof a nullity in terms of section 214 (2) of the Criminal Procedure Act, [Cap 20 RE 2022]. The trial court proceedings and the judgment along with the conviction and sentence thereof are hereby nullified, quashed and set aside accordingly under the Court's revisionary powers in section 372 (1) of the Criminal Procedure Act [Cap. 20 RE 2022]. Given this development the Court shall not consider other grounds of appeal. 7 The pending question for the Court's determination is therefore whether or not the Court should order a re-trial (trial de-novo). Section 214 (2) of the Criminal Procedure Act, [Cap. 20 RE 2019] does not provide for mandatory trial denovo upon nullification of the

proceedings and judgement thereof. As per the evidence on record in this case and up to this juncture, taking into account the fact that the appeal was heard in its entirety, the Court is of the considered position that a re-trial would not be in the interest of justice as it is likely to let the prosecution fill in some gaps hence prejudice the Appellant. In Idd Abdallah @ Adam v. Republic (CAT) Criminal Appeal No. 202 of 2014, Mwanza Registry (unreported) it was held thus; "//7 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 purpose of enabling the prosecution to fill up the 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 blamed, it does not necessarily follow that a retrial shall be ordered; each case must depend on its own facts and circumstances and an order of retrial should only be made where the interests ofjustice require" There shall 8 be no trial denovo of the Appellant on account of the same facts of the case. The Appellant shall be released from prison forthwith unless otherwise held for another lawful cause. 9