CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: SEHEL, J.A.. KITUSL J.A. And MAIGE. J.A.^ CRIMINAL APPEAL NO. 106 OF 2021 MATESO WILSON SHANTIWA....... ..............................................APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the Decision of the Court of the Resident Magistrate of Mbeya at Mbeya) (Laizer, EXT. JUR.^ dated 15th day of October, 2021 in Criminal Sessions No. 25 of 2018 JUDGMENT OF THE COURT 5th & 10th July, 2024 KITUSL J,A.: The appellant was prosecuted under section 196 of the Penal Code, for the alleged murder of one Zaina Samson Mlela, his wife, at Kitusi Village within Mbeya Rural District. Despite the appellant's defence that he was not the architect of his wife's death, the trial court, Laizer, SRM with extended jurisdiction, was satisfied that the seven witnesses for the prosecution proved the case against him. He was, on that basis, convicted and sentenced to the mandatory death sentence. i We shall skip the details of the evidence, because they are irrelevant to our instant decision. This is an appeal against the conviction and sentence raising 8 grounds of appeal which were drawn and filed by the appellant himself and 6 grounds that were drawn and filed by Ms. Irene Mwakyusa, learned advocate representing the appellant. The respondent Republic appeared through Ms. Xaveria Makombe, learned Senior State Attorney, assisted by Ms. Zena James and Julieth Katabaro, both learned State Attorneys. Ms. Mwakyusa argued only one ground of appeal, ground 3, and abandoned the other five grounds. The 3rd ground of appeal states: "3. That the trial court erred both in points of law and in fact by convicting the appellant without following the court procedure of re-assignment of the case." However, we note that the 1st ground of appeal filed by the appellant in person is a twin of the above ground of appeal as it raises the same issue of transfer, that is; 1. 'That the trial court erred in law to convict the appellant while the learned trial Magistrate, Hon. Chaungu who recorded the evidence of PW1, PW2 and PW3 did not have mandate as there was no transfer order to authorise him to try the case" A bit of a background is now necessary to highlight on the essence of this complaint. How was the trial conducted and by who? It is common ground that the jurisdiction to try murder cases is vested in the High Court except where by an order, a particular case is transferred to a Resident Magistrate's court for trial by a specific magistrate extended jurisdiction. We have already stated that the judgment being appealed against was prepared by Laizer SRM. Our concern is whether there was an order transferring the case to her and whether Hon. Chaungu SRM who features in the first ground of appeal as having recorded the evidence of PW1, PW2 and PW3 was properly seized with jurisdiction. The record provides an answer to that, so we shall refer to the parts relevant to our decision. On 12th July 2018, there was a transfer of the case to W.M. Mutaki, SRM. This learned SRM only recorded the appellant's plea and conducted a preliminary hearing on 20th August, 2018. For reasons that are not reflected on the record, on 2nd October, 2019 the trial commenced before Chaungu, SRM and he recorded evidence of three prosecution witnesses, 3 that is, PW1, PW2 and PW3. There is yet another order of transfer dated 12th June, 2020, this time to Laizer, SRM, who concluded the trial by recording evidence of the remaining witnesses, before composing the impugned judgment. Since jurisdiction need not be assumed but express see: Bi Mtumwa Madari Makame v. Abdaila Omar Said (legal representative of the late Omari Said Abeid, (Civil Appeal No. 104 of 2021) [2023] TZCA 17330 (13 June 2023) and since there is no order expressly transferring the case to Chaungu, SRM, he obviously acted without jurisdiction. Ms. Laizer SRM took over the case from Mr. Chaungu who, as it were, had no jurisdiction. Ms. Mwakyusa submitted that the proceedings before Laizer were also marred because she acted on the evidence that had been wrongly recorded by Mr. Chaungu. Ms. Makombe agreed with Ms. Mwakyusa on the nullity of the proceedings that gave rise to the impugned judgment and cited the case of Nasra Hamisi Hassan v. Republic, (Criminal Appeal No. 545 of 2017) [2020] TZCA 1836 (3 November 2020) insisting that Mr. Mutaki to whom the case had been transferred first had the duty to proceed with it to the end. See also Sefu Shayo v. Republic, (Criminal Appeal No477 of 2019) [2022] TZCA 632 (18 October 2022). In our consideration of this matter, we agree with both counsel that section 256A (1) of the Criminal Procedure Act (CPA) and the settled case law would require Mr. Mutaki, SRM who took the plea to proceed with the trial to the end. The takeover of the case by Ms. Laizer, SRM though it followed a transfer order, did not mend the hitherto errors of Mutaki not continuing with the case and that of Chaungu SRM assuming jurisdiction. Consequently, we find merit in the ground of appeal and grant it. We nullify the entire proceedings as prayed, quash the judgment and set aside the sentence. Ms. Mwakyusa prayed that we should not order a retrial submitting that there is no evidence, other than circumstantial, to implicate the appellant. On her part, Ms. Makombe prayed that we remit the record to the High Court for retrial as it was done in the case of Nasra Hamisi Hassan (supra). We have given this aspect a thought, regard being had to the fact that the appellant has been in custody for close to 7 years. But we also bear in mind the fact that the offence attracts capital punishment. In our considered view, we need to balance between the appellant's rights 5 and the prosecution's duty to prove an alleged crime. In the end, we have resolved to order a retrial. Therefore, for the avoidance of doubts, we nullify the proceedings, quash the judgment and set aside the sentence. We order the record to be remitted to the High Court for a retrial according to law. Meanwhile the appellant shall remain in custody. DATED at MBEYA this 10th 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 10th day of July, 2024 in the presence of Ms. Latifa Ayoub holding brief for Ms. Irene Joel Mwakyusa, learned counsel for the Appellant and Mr. Augustino Magessa, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy 6