joseph nyakia daudi vs republic 2022 tzca 841 13 may 2022

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA fCORAM: MKUYE. J.A.. GALEBA. 3.A.. And RUMANYIKA, 3.A.1 CRIMINAL APPEAL NO. 355 OF 2013 JOSEPH NYAKIA DAUDI.............................................................. APPELLANT

VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Mwanza District Registry at Mwanza) fRwevemamu 3.^ dated the 24th day of April 2006 _ in Criminal Appeal No. 352 of 2004

RULING OF THE COURT 9th & 13th May 2022 GALEBA, J.A.: Joseph Nyakia Daudi, the appellant, was convicted and sentenced to serve a term of thirty (30) years imprisonment by the District Court of Mwanza at Mwanza in Criminal Case No. 1163 of 2000 for the offence of armed robbery, contrary to sections 285 and 286 of the Penal Code Cap 16 Vol. I of the laws. From scanty records available, on 24th April 2006, his appeal, Criminal Appeal No. 352 of 2006 was dismissed by the High Court, Rweyemamu J. (as she then was). From then onwards, it is not clear as to what transpired for no credible documents have been traced i except for a copy of the commitment warrant, committing the appellant to prison and also a photocopy of the Criminal Appeals Register showing that his notice of appeal to challenge the decision of the High Court was received in the sub registry of the Court at Mwanza on 12th May 2006. For reasons that are not clear from the record before us, the original record has all along gone amiss. Consequently, on 14th December 2020 this Court made orders to the Deputy Registrar to trace from stake holders various documents and reconstruct the record of appeal and deliver it to the appellant. It is not clear as to what happened, but it appears the appellant in the meantime lodged Criminal Application No. 70/08 of 2020 to the Court. In that application, on 15th July 2021, this Court

repeated the same orders to the Deputy Registrar to do all what was within his powers to reconstruct the record of appeal under section 71(4) of the Tanzania Court of Appeal Rules 2009, in sixty days from that day. In what seems to be a response to that order, we have noted that there is on record, an untitled document compiling letters from various justice sector players lamely, the Prisons, the National Prosecutions Services and the Mwanza Regional Crimes Officer all stating that they do not have any records in sspect of the appellant or his appeal. At the hearing of this appeal, on 9th May 2022, Ms. Bibiana Kileo leaned Senior State Attorney appeared for the respondent Republic and the appellant appeared in person unrepresented. She submitted that the appellant has only 5 months to have his jail term expire in October 2022. She added that taking into due consideration of the documents in the compilation that had been accessed to her, hearing of this appeal was impossible for the documents were so scanty and insufficient. In the circumstances, she stated that this Court be pleased to make orders that could meet the ends of justice, taking into account of the peculiar circumstances of the matter. As for the appellant, he insisted that he has failed to pursue his appeal because there are no records in Court concerning his appeal. He prayed that he be set at liberty for he has

stayed in prison since 2001. We have considered arguments of the parties in this unique matter and we wish to observe that ordinarily where documents are missing, we have always made orders to the registry of the High Court to reconstruct records. See Nassoro Mussa v. R, Criminal Appeal No. 404 of 2015 and Robert Madololyo v. R, Criminal Appeal No. 486 of 2015 (both unreported). 3 However, where the order for reconstruction of the record does not yield results, the Court has stated authoritatively that, there is no one specific rule on the way forward. The court must try to hold the scales of justice evenly between the parties and come up with an order that strikes the balance. Further, in Joseph Nyakia Daudi v. R, Criminal Application No. 70/08 of 2020 (unreported), this Court observed that where all efforts of tracing missing records have been exhausted, each matter will be decided on the basis of its unique and special circumstances. In the case of Norbert Ruhusika v. R, Criminal Appeal No. 573 of 2017 (unreported), the records were missing and efforts to trace them failed. The appellant had served a substantial term of his sentence in jail. He had served eighteen (18) years in prison out of his thirty (30) years term he had been sentenced to in prison following his conviction on a charge of rape. The Court took into consideration all possible eventualities in case the

documents were not procured including an order for retrial and eliminated them all. For instance, it considered retrial but then, participants including those who would try him de novo, had confirmed in writing not to have anything upon which they could base a retrial. This Court observed that as the appellant had served a substantial part of his sentence, the conviction was quashed and had the appellant's sentence set aside. In this case, Ms. Kileo informed us that the appellant had served over twenty (20) years in prison and has not been able to appeal. She stated that the appellant has served a substantial term of his punishment such that he had only five months to remain in prison. In our view, ordering a retrial even if the Deputy Registrar would be able to trace the documents, would achieve so little, for it will be carried out after the appellant will have completed his sentence. And that, in our view would be an injustice, which this Court cannot associate itself with. In our deeply considered view, we are of the conviction that, the scales of justice will only balance if we follow what we did in Norbert Ruhusika (supra), in the peculiar circumstances of this case. The scales will at least balance if we quash the conviction of the appellant and set aside his sentence of his remaining term in prison, for he has served a substantial part of it, remaining with only five

(5) months after having served over twenty (20) years. Nonetheless, we must observe that, this ruling goes out with a strong caveat attached with it, that is, it should not be mistaken with an act of condoning any acts of any court user or servant leading to unexplained disappearances of court records. 5 Accordingly, under the provisions of section 4 (2) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019] we quash the conviction of the appellant and set aside his remaining sentence with orders that he be released from prison forthwith unless he is held there for some other lawful cause. DATED at MWANZA this 13th day of May, 2022 R. K. MKUYE

JUSTICE OF APPEAL Z. N. GALEBA

JUSTICE OF APPEAL S. M. RUMANYIKA

JUSTICE OF APPEAL The Ruling delivered this 13th day of May, 2022 in the presence of Mr. Emmanuel Luvinga, learned Senior State Attorney for the Respondent and in the absence of the appellant who was duly notified, is hereby certified as a true copy of the original. A. L. KALEGEYA

DEPUTY REGISTRAR

COURT OF APPEAL