KASUKA MASUNGA JD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA

AT SHINYANGA CRIMINAL APPEAL NO. 07 OF 2022

KASUKA MASUNGA APPLELLANT

VERSUS

REPU BLIC RESPONDENT [Appeal from the Decision of District Court of Bariadi at Bariadi.] (Hon.M.M. Nyanqusi RMl dated the 10th day of December,2021 in Economic Crime Case No. 26 of 2020

JUDGMENT 24h September, 2023 & 3(Jh January, 2024. S.M. KULITA, l. This is an appeal from Bariadi District Court. The appellant herein above, was charged for three counts namely; one, Damaging the Property which is used for purpose of providing necessary services, contrary to Paragraph 20(1)(2) and (3)(e) of the First Schedule and section 57(1) of the Economic and Organized Crime Control Act [Cap. 200 RE 2019], two, Stealing, contrary to section 258(1)(2)(a) and 265 of the 1 Penal Code [Cap. 16 RE 2019] and three, an alternative to the second count, Unlawful possession of property suspected of Having been stolen or Unlawful acquired contrary to section 312(1)(b) of Economic and Organized Crime Control Act Cap. 200 RE 2019. It was alleged that, on 4th September, 2020 at Mwakatale village within Itilima District in Simiyu Region, the appellant did damage, steal and found in possession of three solar panels watts 250 valued at Tshs. 20,625,000/= which is used for distribution of water, as a result, caused the residents of Mwakatale village to suffer lack of water services. Shortly the prosecution's case as revealed by its witnesses goes that, on the material date, the Village Chairman for Mwakatale found the solar panels missing at its system. He resorted into informing the Head of Police in the District (OCD) who in turn, gave him the phone numbers of Police Officers who were in

patrol to contact with. He added that, he informed called and informed them on the missing the solar panels. While in patrol and search, it happened that those Police Officers met the appellant herein with a bicycle, carrying some luggage. They stopped him and asked as to what he was carrying. The appellant stated to have carried the solar panels. To verify the same, they searched the luggage and the search revealed the same. Those Police officers resorted 2 into calling the Village Chairman for identification. The Village Chairman identified the solar panels being the ones which were found missing at the village water system. The Policemen seized the said solar panels and filled the certificate of seizure. The Prosecution evidence further shows that, upon interrogation, the appellant confessed to have committed the offences charged. To the contrary, the appellant defended that, this case is fabricated. He gave reasons that, it is due to the conflict on the lease contract that he had with PW2. He added that, the conflict caught fire upon learning that, PWl had love affairs with his wife. He added that, those conflicts led him to be charged for this case. Though he denied the charge, at the conclusion of the trial, the appellant was found guilty, consequently convicted and accordingly sentenced for ''Damaging the Property which is used for purpose of providing necessary

services'; and ''Stealing'~That was on the 10th day of December, 2021. Aggrieved with that decision, the Appellant preferred the instant appeal on a total of seven grounds. For the reasons which will be apparent shortly, I will not belabor myself into reproducing the grounds of appeal at this stage. 3 The record shows that, the appellant herein was charged with the offences that falls under the First Schedule to the Economic and Organized Crime Control Act [Cap 200 RE 2019] and Non-economic offence. For economic offence, section 57 of Cap 200 provides; - "57.- (1) With effect from the 25th day of September, 1984, the offences prescribed in the first Schedule to this Act shall be known as economic offences and triable by the Court in accordance with the provisions of this Act" The court with jurisdiction to entertain such offences as stated under the quoted paragraph, has been defined under section 2 of the said Economic and Organized Crime Control Act as; "Court" means the Corruption and Economic Crimes Division of the High Court established under section 3" For the appellant to be tried by a subordinate court, there is a need of a certificate conferring jurisdiction to it and consent as per sections 12(4) and 26(2) respectively of that said Act, Cap 200, which provides; "12(4) The Director of Public Prosecutions or any State Attorney duly authorised by him, may, in each case

in which he deems it necessary or 4 appropriate in the public interest, by certificate under his hand order that any case instituted or to be instituted before a court subordinate to the High Court and which involves a non-economic offence or both an economic offence and a non- economic offence, be instituted in the Court. 26. -(1) Subject to the provisions of this section/ no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions. (2) The Director of Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining of his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette, specify economic offences the prosecutions of which shall require the consent of the Director of Public Prosecutionsin person and those the power of consenting to the prosecution of which may be exercised by such officer or officers subordinate to 5 him as he may specify acting in accordance with his general or special instructions" The available records show that, the appellant was tried at the subordinate court without consent of the Director of Public Prosecutions (DPP). What purports to be a consent was made under sections 26(1) of the said Cap 200 respectively by a person who is not a DPP himself. Section 26(1) is used by the DPP himself

while section 26(2) is used by the other Prosecution Officers when giving consent for the accused person to be tried at the subordinate court. On that account, this defect that the Regional Prosecution Officer in-charge, issuing a consent under a provision which is for the DPP himself, is as saying, the appellant was tried at the subordinate court, with no consent at all. Concerning this defect, what does the law say on it? In the case of Adam Seleman Njalamoto v. Republic, Criminal Appeal No. 196 of 2016, CAT at DSM had this to say; - ''In view of this legal position, the appellant was prosecuted without consent and a certificate of transfer issued by the Director of Public Prosecutions, in the 6 result; we are of the view that the proceedings, conviction and sentences in the trial court and in the first appellate court were illegal and a nullity. " To insist on it, the Court of Appeal enlisted a litany of authorities to that effect, which are; Ndihokubwayo 5/0 Emmanuel vs. the Republic, Criminal Appeal No. 300 "B" of 2011; Rhobi Marwa Mgare and two others vs. Republic, Criminal Appeal No.192 of 2005, Amri Ally @Bechavs. Republic, Criminal Appeal No. 151 of 2009, Samwel Mwita vs. Republic, (Consolidated Criminal Appeal Nos.34,35,36, and 66 of 2009; Kaganda John & Another vs. Republic,Criminal Appeal No. 356 of 2009; Dotto Saium @ Butwa vs. Republic, Criminal Appeal No. 5/2007;

Nicco Mhando & 2 Others vs. Republic, Criminal Appeal No. 332 of 2008 (all unreported) just to mention a few. On that account and with the dictates of the Court of Appeal decisions on the issue in question, I am settled in my mind that, as the appellant was tried without consent from the DPP,thus, the trial court's proceedings, conviction and sentence as well, are hereby declared illegal and nullity. I thus, proceed to quash all proceedings and conviction made by the trial Court and set aside sentence imposed against the appellant. 7 The remaining question is what should be done then at this juncture? In the cited case of Adam Seleman Njalamoto (supra) it was stated that; - "We are mindful that where the trial court fails to direct itself on an essential step in the course of the proceedmas, it does not in our vie~ automatically follow that a re-trial should be ordered, even if the prosecution is not to blame for the fault Clearl~ of course, each case must depend on its particular facts and drcumstsaces". In order to ascertain whether this court should thus order retrial, the guidance made in the case of Fatehali Manji V. R [1966] E.A. 343 was sought, particularly on the hereunder quoted phrase; "In genera/, a retrial may 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 purposes of enabling the prosecution to fill in gaps in its evidence at the first tria/. Each case must depend on its own facts and an order for retrial should only be made where the interests of justice require it" 8 As long as the records provide that the solar panel have been stolen and that the Appellant herein is the key suspect for being found in possessionof the said stolen properties. And, the fact that the appeal has just been faulted upon finding out that the trial court had been moved through the defective certificate and consent, for the interest of justice, I find it convenient for the matter to be re-tried (trial de novo) at Bariadi District Court. Should it be found that the appellant is guilty, when considering the sentence to impose against him, the trial officer, should deduct the period of time that the appellant has already served in jail. 1tL S.M. KULITA

JUDGE 30/01/2024 tK- S.M. KULITA

JUDGE 30/01/2024 9