CRIMINAL APPEAL NO 71 OF 2021 KELVIN JONAS KIMBILA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: SEHEL, 3.A., KITUSI. J.A. And MAIGE. J.A.^ CRIMINAL APPEAL NO. 71 OF 2021 KELVIN JONAS KIMBILA........................................................... APPELLANT VERSUS THE REPUBLIC.......................... ............................................ RESPONDENT (Appeal from the Decision pf thsttigh Court of Tanzania at Mbeya) (N'qiiftVale/J.) dated the 22nd day of December, 2021 • ■ ■ ' • in Criminal Appeal No. 94 of 2021 JUDGMENT OF THE COURT 1st & 8th July, 2024 > ; KITUSI, J.A. = The appellant was allegedly found in possession of 15 pieces of warthog meat and consequently charged with an economic offence under section 86 (1) (2) (c) (iii) of the VVildlife Conservation Act as amended and read together with paragrphl4 (d) of the 1st schedule and sections 57 (1) and 60 (1) of the Economic and Organized Crime Control Act (Cap 200). When the above charge was read over to the appellant, he is recorded to have pleaded guilty.to it and admitted the facts constituting it as true. He was, for that: reason, found guilty and convicted by the District Court of Mbarali at Rujewa and sentenced to a jail term of 20 years. His appeal to the High Court was unsuccessful, the Court taking the view that section 360 (1) of the Criminal Procedure Act (Cap 20) bars appeals against convictions entered upon one's plea of guilty. It was satisfied that the appellant's plea was unambiguous and did not fall under any exceptions to the rule as per Laurent Mpinga v. Republic, [1983] T. L. R. 166. The appellant is still at it, challenging the finding that he offered an unambiguous plea, and has cast his net wider by complaining that he was wrongly convicted and sentenced by the trial court without there being a judgment in the real sense of the word. He presented a total of 10 grounds of appeal but finally he did not address any of them. It turned out that Mr. Alex Mwita learned Senior State Attorney who was representing the respondent Republic assisted by Mr. Emmanuel Bashome, also, learned State Attorney supported the appeal on the ground that the trial court did not have the requisite jurisdiction, rendering the proceedings before it and those before the High Court on appeal a nullity. 2 The learned Senior State Attorney cited section 3 (1) of the Economic and Organized Crime Control Act, hereafter the Act, to argue that only the High Court is conferred with jurisdiction to try economic offences and of course, other subordinate courts only upon the Director of Public Prosecution (DPP) making a written consent under section 26 of the Act and certifying accordingly to a subordinate court to try such offences. In this case, he submitted, although there was mention by the prosecutor of the DPP's consent being available, there was no evidence that it was received by the court and endorsed before it acted upon it and assumed jurisdiction. The cases of Aloyce Joseph v. Republic, Criminal Appeal No. 35 of 2020 [2022] TZCA 771 (5 December 2022) TANZLII, and Joseph Ngadupa Akilimbaya & Another v. Republic, Criminal Appeal No. 632 of 2020 [2024] TZCA 39 (14 February, 2024) TANZLII were cited to support the argument that an unendorsed consent or certificate is as good as non - existent. We need not wait any longer to observe that such has been the position. In Aloyce Joseph (supra) for instance, we quoted the following paragraph from Maulid Ismail Ndone v. Republic, Criminal Appeal No. 319 of 2019 [2021] TZCA 538 (29 September, 2021) TANZLII: 3 " . . the consent and certificate signed on lf f h April\ 2018 were not officially received by the trial court . . . consequentlyin the absence of the consent and the certificate of the DPP, the trial court lacked jurisdiction to try this case rendering the entire proceedings a nullity." And such is the fate of the proceedings from which this appeal arises. By not formally receiving the consent and certificate conferring jurisdiction, we accept the invitation by Mr. Mwita to act under section 4 (2) of the Appellate Jurisdiction Act (Cap 141) (AJA) and nullify the entire proceedings both of the trial court and High Court. We think the point which has been ably canvassed by Mr. Mwita is sufficient to dispose of the matter, therefore we do not need to address the grounds of appeal. Aware of this fact may be the appellant decided not to pursue the complaints raised in the Memorandum of Appeal. He asked the Court to go along with Mr. Mwita's submission and prayer. We have reflected on the question whether we should order a retrial according to law, or not. We are settled that such an order will be at loggerhead with the justice of this case. Instead, we agree with Mr. Mwita again who invited us to set the appellant free and leave the matter at the DPP's good wisdom to decided whether to prosecute again or not. This course of action was taken by the Court in Joseph Ngadupa AkiSimbaya (supra) and we shall do the same but on condition that such decision by the DPP must be taken not later than 18 months from the date of delivery of this judgment. Accordingly, we order the release of the appellant forthwith unless he is being held for some other lawful cause. DATED at MBEYA this 5th day of July, 2024. B. M. A. SEHEL JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL Judgment delivered this 8th day of July, 2024 in the presence of the Appellant in person and Ms. Hannarose Kasambala, learned Senior State Attorney assisted by Mr. Davice Msanga, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.