KOMANYA FINAL 2

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

AT GEITA CRIMINAL APPEAL NO. 549 OF 2025 (Originating from the Ruling of the District Court of Mbogwe in Criminal Case No. 4732 of 2025 before A. FUNGO- SRM) KOMANYA LAURENCE MISINZO---------------------------1ST APPELLANT PETER JOHN LUBUVA-----------------------------------2ND APPELLANT KURUTHUM MASHU MAKUMULI----------------------- ---3RD APPELLANT

VERSUS THE REPUBLIC------------------------------------------ RESPONDENT

JUDGMENT Date of last order: 05 March 2025 Date of Judgment: 12 March 2025 K. D. MHINA, J. At the District Court of Mbogwe, the appellants, Komanya Laurence Misinzo, Peter John Lubuva and Kuruthum Mashu Makumuli [hereinafter to be referred to as the 1st, 2nd and 3rd appellants respectively] were arraigned for three economic offences, namely; Abuse of Position, c/s 31 of the Prevention and Combating of Corruption Act [ Cap 329 R.E 2022] read together with paragraph 21 of the first Schedule 1 and sections 57(1) and 60(2) of the Economic and Organised of Crimes Control Act [Cap 200 R.E 2022] The second offence was Embezzlement and Misappropriation, c/s 28(1) and (2) of the Prevention and Combating of Corruption Act [ Cap 329 R.E 2022] read together with paragraph 21 of the first Schedule and sections 57(1) and 60(2) of the Economic and Organised of Crimes Control Act [Cap 200 R.E 2022] and the third offence was Money Laundering, c/s 12 (d) and 13 (1)(a) of the Anti-money laundering Act, [Cap 423 of 2022] read together with paragraph 22 of the first Schedule and sections 57(1) and 60(2) of the Economic and Organised of Crimes Control Act [Cap 200 R.E 2022]. In the 1st count, it was particularized that the 1st and 2nd appellants on the diverse dates in July 2023, at Mbogwe District Council within the Region of Geita, being employees as the Head Teacher of Nyakasaluma Primary School

and Primary Education Officer of Mbogwe District Council respectively, jointly and together did intentionally abuse their positions by appointing a supplier, Abubakari Nestory Paskali and paying TZS 32,143,300/= to that supplier before delivering and fittings aluminium windows to the school contrary to regulation 168 of the Public Procurement 2 R egulations, 2013 for the purpose of obtaining undue advantages for themselves. In the 2nd count, it was alleged that the 1st and 2nd appellants on diverse dates in July 2023 at Mbogwe District Council within the Region of Geita, being employees as the head teacher of Nyakasaluma Primary School and Primary Education officer of Mbogwe District Council respectively, jointly and together did fraudently misappropriate Tanzanian Shillings Ten Million Only (TZS 10,000,000/=) which was entrusted to them by Mbogwe District Council the amount they converted to their own use. In the last court, it was alleged that the 1st, 2nd and 3rd appellants on 7 July 2023 at Lugunga Road area within Mbogwe District Council in Geita Region jointly and together acquired TZS. 9,000,000/= from Abubakary Nestory Paskali who deposited the money to the bank account number 61810004120 maintained at National Microfinance Mank (NMB) by Kuruthum Mashu Makumuli while at the time of deposit and receipt of the said amount of money they knew or they ought to have known the

same was the proceeds of predicate offence, namely Embezzlement and Misappropriation. 3 Before going into the merits or demerits of this appeal, a brief background of this matter is necessary to understand what triggered this appeal. According to the records, when the appellants were arraigned before the trial court on 7 February 2025, they were not ready for the Court to read the charge sheet containing the offences they were facing. The appellants informed the trial court they were not ready because their advocates were absent. The trial court addressed the appellants in terms of section 228 (4) of the CPA and proceeded to record the plea of not guilty for both appellants in each count each one was facing. After the plea of not guilty was entered, the prosecutors informed the court that they were ready to proceed with the preliminary hearing. However, again, the appellants stated they were not ready as their advocates were absent. The trial court adjourned the matter until 12 February 2025. On 12 February 2025, the prosecutions informed the trial court they were ready to proceed with a preliminary hearing, and also that day, they had four (4) witnesses in attendance. That day, the appellants were represented by their advocate, Mr. Martin Masanja. Before the 4 commencement of the preliminary hearing, Mr. Masanja raised an objection that since the appellants were previously

discharged under section 91 (3) of the CPA, charging them for the same facts while there was no sufficient evidence was not proper. Therefore, he prayed for the prosecution to withdraw the charges so that the appellants be set free. After hearing the objection, on the same date, the trial court dismissed the objection for want of merits by the Ruling subject to this appeal. It also ordered the preliminary objection to proceed and informed the parties that since the case was pending at the trial court for a long time, hearing it by way of session would dispose of it early. On the same date, the preliminary objection was conducted. After conducting the preliminary hearing, the counsel for the appellants requested a copy of the facts of the case. The court ordered the counsel be supplied with a copy of the facts, and the case was adjourned and scheduled for a hearing on 20 February 2025. On 20 February 2025, the prosecution side informed the court that they had four (4) witnesses, and they were ready for the hearing. However, counsel for the appellants informed the trial court that they were not ready 5 as they filed a notice of appeal after being aggrieved by the trial court's ruling. Therefore, in faulting the trial court’s ruling, the appellants preferred five (5) grounds of appeal as follows; i. The Trial Magistrate erred by holding that the Prosecutions had sufficient

evidence against the Appellants when the said Appellants were rearrested. ii. The Trial Magistrate erred by holding that the Prosecutions were ready for Hearing on the date the Appellants were rearrested. iii. The Trial Magistrate erred in law and fact by failure to hold that the Director of Public Prosecutions abused his statutory powers, for failure to take into consideration the circumstances and manners leading up to and surrounding the Appellants’ immediate rearrest after being discharged by means of Nolle Prosequi. iv. The Trial Magistrate erred in law and fact by allowing the Prosecutions to proceed with the Preliminary Hearing in the absence of the Appellants’ Advocates despite the Appellants’ opposition. Consequently, the said Appellants were denied a fair hearing. 6 v. The Trial Magistrate erred in law and fact by considering extraneous and irrelevant matters in the impugned Ruling, which were not borne out of the submissions of the parties on record since the case was so prolonged. Therefore, a session plan will help dispose of it quickly in order to ensure that justice is served to the Appellants. At the hearing, the appellants were represented by Mr. Gervas Geneya and Mr. Martin Masanja, learned Advocates, while the respondent/ republic was represented by Ms. Beatrice Godfrey and Mr. Eric Mmanda, learned State Attorneys. The appeal was argued orally. He was Mr.

Geneya, who submitted first by joining the 1st, 2nd and 3rd grounds and argued them together by giving a background of the appeal. He submitted that their complaint was based on the decision of the prosecution to discharge the appellants by nolle prosequi in Economic Case No. 19491 of 2024 and rearrested and recharged them again in Economic Case No 3319 of 2025 based on the same facts of the previous case without considering section 91 (3) of the CPA. He explained that the law imposed mandatory procedures before the rearresting and recharging of the offenders. Further, section 8 of the 7 National Prosecutions Services Act of 2008 (NPS Act) elaborated the principles in which the DPP shall exercise its mandate. In the 1st, 2nd and 3rd grounds, he submitted the as per the records as at page 1, the appellants were arraigned in the case subject to this appeal on 7 February 2025 after being re-arrested. That day, the prosecutors prayed for a preliminary hearing date, indicating they were not ready to proceed with the case. Further, from pages 6-8 of the record, there was a ruling of the trial Court in which the trial magistrate held that the prosecution had sufficient evidence and the prosecution was ready to proceed with the case. From above, Mr. Geneya stated that the trial magistrate erred because 25 February 2025 was not the first day after the appellants were rearrested and

re-arraigned. Therefore, the trial magistrate failed to declare that the DPP abused his powers while arresting and re-charging the appellants. In addition, Mr. Masanja submitted that the DPP was supposed to give sufficient reason for re-instituting the case. However, nothing was submitted at the trial as sufficient reasons to do so. 8 He explained that in section 91 (3) of the CPA, the DPP is required to bring the witnesses on the very date the case is reinstituted. However, at the trial, when the case was re-instituted, there were no witnesses in attendance. Regarding the 4th ground, Mr. Geneya submitted that on 7 February 2025, the appellants were denied their right to be heard. He explained that on that date when the appellants were arraigned before the trial court, they refused (raised concern) to answer the charge sheet because their advocates were absent. However, the trial court read over the charge and recorded their pleas. He elaborated further that the proceedings were silent if their prayer on the concern that their advocates were absent was decided by a finding of the court or not. He concluded by submitting that because the appellants were denied their right to be heard, the trial court’s proceedings were vitiated. He substantiated his argument by citing Mbeya Rukwa Autoparts and Transport Ltd vs Jestina Mwakyoma (2003) TLR 251 at page 265. 9 On the last ground,

Mr. Geneya submitted that the trial magistrate included extraneous matters in the decision that were not included in the submissions by the parties. He explained that what was contained in paragraph 2 of page 8 of the proceedings was not from the submissions of the parties. Therefore, the trial magistrate based his decision on his opinion and not on the submissions from the parties and that was a fatal irregularity as held in Valery Palutala vs. DPP, Criminal Appeal No. 102 of 2019 (Tanzlii) at page 12. In conclusion, he submitted that the remedy for the above illegalities is an order of absolute discharge for the appellants. On this, he prayed this Court to borrow an inspiration from the case of Nkinga Maganga and two others vs Republic, Criminal Session No. 78 of 2018, HC- Dodoma (Tanzlii). In response to the 1st, 2nd and 3rd grounds of appeal, Ms. Godfrey submitted that the records indicated that on 7 February 2025, when appellants were arraigned before the trial court, they refused to plead because their advocates were absent. After that, the trial court addressed them in terms of section 228 (4) of the CPA and entered a plea of not guilty 10 against them. On the same day, the appellant informed the trial court that they were not ready for the preliminary hearing. Therefore, the trial Court adjourned the preliminary hearing until 12 February 2025. On 12 February 2025, the

prosecution informed the court that they had four witnesses. However, the appellants’ advocates raised an objection, and after the objection was dismissed, they filed this appeal. Therefore, she argued that in relation to section 91 (3) of the CPA, the appellants’ advocates were absent, and the appellants refused to proceed with the case. In addition, Mr. Mmanda submitted that as per section 91 (3) of the CPA, the prosecution had sufficient evidence to re-institute the matter and were ready to proceed when the appellants were re-arraigned. Regarding section 8 of the NPS Act, he stated that it was in the public interest that the appellants were rearrested and rearrigned after the previous charge was withdrawn. On the 4th ground, Ms. Godgrey submitted that on 7 February 2025, the appellants informed the trial court that they were not ready to proceed. 11 Then the matter was adjourned for a preliminary hearing on 12 February 2025. Therefore, they were heard, and the matter was adjourned. Regarding the last ground, she submitted that as per the proceedings, what the counsel for the appellants called extraneous matters was a comment by the court in a decision. Further, the cited case of Nkinga (Supra) is distinguishable; in the cited case, the prosecution prayed to withdraw the case, and the accused counsel did not object to the prayer; however, they prayed for the

absolute discharge. In a brief rejoinder, Mr. Ganeye stated that the appellants did not refuse, but they gave the reason that their advocates were absent. Therefore, section 228 (4) of the CPA was inapplicable. Further, the records did not reveal if on 7 February 2025, the prosecution was ready to proceed and had witnesses. Regarding extraneous matters, he submitted that a court decision must be based on arguments presented by the parties. In addition, Mr. Masanja submitted that on 7 February 2025, the prosecution did not bring the witnesses for sufficient evidence. Further, the 12 appellants were charged on the same facts. Therefore, the procedure was vitiated. Having considered the trial court’s records, grounds of appeal and the submission made by the parties, I will start with the 4th ground of appeal regarding the right to be heard. In the cited case of Mbeya Rukwa Autoparts and Transport Ltd (Supra), it was held inter alia that; (i) The right of hearing is a fundamental constitutional right in Tanzania by virtue of Article 13 (6) (a) of the Constitution; (ii) The judge's decision to revoke the rights of M/s Kagera and the appellant, without giving them the opportunity to be heard, was a violation of the Rules of natural justice but also a contravention of the Constitution, hence void and of no effect." Therefore, where there is a violation of the right to be heard in a

trial, it vitiates the entire proceedings and causes the resultant decision a nullity. See Wegesa Joseph M. Nyamaisa vs. Chacha Muhogo, Civil Appeal No. 161 of 2016 (Tanzlii). 13 The question in this appeal is whether the appellants were denied their right to be heard on 7 February 2025. As alluded to earlier, on 7 February 2025, when the appellants were arraigned before the trial court, they raised a concern and refused to plea for the reason that their advocates were absent. Section 228 (1) of the CPA provides for the procedure when the charge sheet is presented to the court. It reads; “The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge”. [Emphasis provided] From the above-cited provision of law, it is quite clear that the that law is couched in mandatory terms because of the word “shall,” which is imperative and obligatory to perform an act. This is because the word shall have been interpreted under Section 53 (2) of the Interpretation of Laws Act, Cap 1 [RE: 2019] to mean and apply:- “53 (2) Where in a written law the word 'shall' is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.” 14 Therefore, when the accused person is presented before the court, that court has a mandatory obligation to: one, state

the substance of the charge to the accused and two, ask the accused whether he/she admits or denies the charge. Thus, the words under section 228 (1) of the CPA are express, explicit, and mandatory. They are imperative in nature and must be strictly complied with, and impose mandatory obligation on the court. Therefore, there is no shortcut in compliance with that law. After the charge is read over to the accused person, the law provides for the following scenarios: one, the accused may plead guilty; two, the accused may plead not guilty; three, in other circumstances, the accused may refuse to plea; and four, the accused may plead autrefois acquit. These scenarios are provided under sections 228 (2), (3), (4) and (5), as shown below; (2) Where the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses…” (3) Where the accused person does not admit the truth of the charge, the court shall proceed to hear the case…. 15 (4) Where the accused person refuses to plead, the court shall order a plea of “not guilty” to be entered for him. (5) Where the accused person pleads- (a) that he has been previously acquitted of the same offence; or (b) he has obtained a pardon at law for his offence, the court shall first try whether or not in fact such plea is true. The refusal to plea or the concern raised by the appellants to

make them not enter their plea, as put by Mr. Geneya, is not among the options available when the charge is read to the accused person under section 228 (1) of the CPA. Therefore, the trial magistrate correctly invoked section 228 (4) of the CPA to enter a plea of not guilty for the appellant, who refused to plea as she had no other option. Under the section, in my view, refusal means expressly or impliedly by words indicating that the accused is not ready to plea or even to remain silent. Further, the law strictly needs the one who should plea to be the accused person and not the advocate. From above, I have the following; 16 One, the procedure of plea was correctly adhered to by the trial magistrate after the refusal of the appellants to plea. Two, there was no violation of the right to be heard because the appellants were given their right to a plea, but they refused. Further, when the trial magistrate wanted to proceed with the preliminary hearing, the appellants responded that they were not ready, and the trial was adjourned to another date due to that reason. Therefore, the 4th ground of appeal is meritless, and it is dismissed. On the 5th ground, regarding the inclusion of the extraneous matters in the trial court ruling, this should not detain me long. According to Mr. Geneya, the extraneous matters he referred to are in paragraph 2 of page 8 of the proceedings. The

paragraph read as follows; “But because this case has stayed for a longtime, session plan will help to dispose it early as soon possible so as to ensure accused persons rights to justice is not denied”. In law, it is trite that importing extraneous matter into a decision is not allowed. See Sebastian Muna vs. Republic, Criminal Appeal No. 299 of 2016 (Tanzlii). Further, that anomaly is an incurable irregularity. See Lucas 17 Venance @Bwandu vs. Republic, Criminal Appeal No. 392 of 2019 (Tanzlii). However, having gone through the trial court’s ruling, the complaint in the 5th ground of appeal is baseless. This is because that was a comment/ order of the court after the decision, which was based on the parties ' submissions. In a previous paragraph, there is a holding of the trial court which I quote; “This court after heard submission from both sides is of the view that since prosecution side has prepared for hearing and they have 4 witnesses today I allow to proceed with hearing. This is because section 91(1) of CPA provides for that power as well as section 91(3) of CPA cements that if Prosecution had re arrested the accused person and charges them on the same facts and if they have sufficient evidence as well as if they are able to commence hearing on the same date, which according to this case prosecution are ready for hearing as they stated at the beginning when addressing

the case. The prosecution has stated that they have sufficient evidence on the matter that is why they have re instituted the case against the accused persons. Also, the court has passed through the sited case of R vs. Nkinga and 2 others, which have different concern and environment compared to this 18 one. The case was murder case of which to start afresh it needed the committal proceedings to start afresh as well”. Therefore, the style used by the trial court of commenting, ordering or putting obiter dictum in judgment writing is allowed and is not a new phenomenon. For instance, in Ahmed Chali vs. Republic, Criminal Appeal No. 56 of 1995 (Tanzlii), after its holding/ decision on the ground of appeal, the Court of Appeal added and commented that; “We wish to add two matters, the first one quite briefly; and the second one is, we think, of great moment: The first one is, having expressed our surprise at the learned State Attorney’s failure to support the conviction we wish to say that we were making the remark only with particular reference to this appeal, the way we were viewing it. For the avoidance of doubt, we should not be taken to intend to say that State Counsel should always resist appeals against the Republic, no matter the merit or lack of it. If after serious consideration and in keeping with professional ethics which are a trademark in our calling, State Attorney

is of the view that he is not in a position to support a conviction, for that matter any decision, “in favour” of the Republic, he should feel free, and indeed feel obliged, to inform the Court, bearing in mind that he is an officer of the Court” 19 Therefore, the paragraph complained by the appellants was not an extraneous matter, as it was not the basis of the decision, rather that the comment/order of the trial court. From the above discussion, the 5th ground of appeal lacks merit. Reverting to the 1st, 2nd and 3rd grounds of appeal, these also should not detain me long. Section 91 (3) of the CPA provides that; “Where the accused person is discharged under subsection (1) he shall not be rearrested and charged on the same facts unless there is sufficient evidence and that the hearing proceedings shall commence on his first appearance before the court”. As I indicated earlier, the trial court records reveal that on 7 February 2025, the appellants refused to proceed with the trial. Therefore, proceeding with the hearing in such circumstances was impossible. Thus, the trial was adjourned until 12 February 2025. On 12 February 2025, the record indicates that the matter was scheduled for a preliminary hearing, and the prosecution had four witnesses. However, the counsel for the appellants raised an objection, which was heard and disposed of by the trial court. 20 Again, on 20

February 2025, the prosecution had four witnesses, but the counsel for the appellants informed the trial court that they were not ready as they filed a notice of appeal after being aggrieved by the decision of the trial court. In the above circumstances, neither the prosecution nor the trial court was at fault or to be blamed. Further, there were no violations of section 91 (3) of CPA because while the prosecution was ready to proceed, the appellants were not ready. In his submission, Mr. Masanja stated that the DPP was supposed to give sufficient reason for re-instituting the case. I think that is a misinterpretation of section 91 (3) of CPA. The correct position provided by the law is “sufficient evidence”, which, at the trial, the prosecution called four witnesses ready to give evidence at the commencement of hearing. Further, Mr. Geneya invited this Court to borrow the inspiration in the cited case of Nkinga Maganga (Supra) and order absolute discharge to the appellants. Having gone through the cited case, I found the following: one, the prosecution prayed to withdraw the information and discharge the accused persons under section 91(1) of the CPA; two, the advocates for the 21 accused persons did not object to that prayer; however, one of the advocate prayed to the court to halt the re-arresting of the accused and the court to order absolute discharge; three, the court

withdraw the information and discharge the accused persons under section 91(1) of the CPA; four, the court declined to order an absolute discharge and five; the Court reminded the prosecution to adhere with the conditions under section 91 (3) of the CPA. Therefore, contrary to what was submitted by Mr. Geneya in the cited case of Nkinga Maganga (Supra), the Court did not order for absolute discharge of the accused person. In that case, the cited case is immaterial and there is nothing to draw an inspiration. Thus, the 1st, 2nd and 3rd grounds of appeal are devoid of merit. Following what I have endeavored to discuss above, both grounds of appeal presented by the appellants are without merit. Like what the trial magistrate commented in her decision regarding the expedition of the trial, I also order the trial against the appellants be expedited. Consequently, I dismiss the appeal. It is so ordered. 22 K. D. MHINA

JUDGE 12/03/2025Court: The right to appeal is fully explained to the parties. K. D. MHINA

JUDGE 12/03/2025 23