Mikidadi Lucas Ouche Juma Sungura Jeisuu Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: LEVIRA. J.A.. MASOUD, J.A. And NANGELA. J. A.^ CRIMINAL APPEAL NO. 677 OF 2023 MIKIDADI LUCAS OUCHE @ JUMA SUNGURA @ JEISUU...... APPELLANT VERSUS THE REPUBLIC............................................................... RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Musoma at Tarime) (Moshi, PRM- Ext. Jur.) dated the 7th day of June, 2023 in Criminal Sessions Case No. 18 of 2022 JUDGMENT OF THE COURT 19th & 21st March, 2025 MASOUD. J.A.: The appellant was aggrieved by the decision of the Resident Magistrate's Court of Musoma with Extended Jurisdiction (Moshi, PRM - Ext. Jur.) in Criminal Sessions Case No. 18 of 2022 which convicted him of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16. The decision also sentenced him to suffer death by hanging. The appellant lodged a memorandum of appeal consisting of 13 grounds and subsequently, a supplementary memorandum of appeal consisting of three grounds. However, at the hearing, the rest of the grounds of appeal were abandoned, save for the first ground in the memorandum of appeal. The same raised an issue as to whether or not Moshi (PRM - Ext. Jur.) had jurisdiction to entertain the matter which, according to the order of the High Court transferring the matter to the Resident Magistrate's Court, directed that the matter be heard by Myombo (SRM-Ext. Jur.). At the hearing, the appellant was represented by Mr. Cosmas Tuthuru, learned advocate. On the other hand, the respondent Republic was represented by Mr. Charles Kagirwa, learned Senior State Attorney. In their submissions, both learned counsel were at one that according to the order of the High Court as, per Mtulya, J., appearing at page 12 of the record of appeal, which was made in terms of section 256A (1) of the Criminal Procedure Act, cap. 20 (C. P. A.), the case from which the instant appeal arises was transferred to the Resident Magistrate's Court for it to be heard by Myombo (SRM - Ext. Jur.) who, for unclear reasons, handled the case up to the preliminary hearing stage contrary to the stipulation of the order. Thus, since the case was not transferred to Moshi (PRM - Ext. Jur.), who conducted the trial after the preliminary hearing without there being an order re­ transferring the matter to him, the said learned magistrate did not have the requisite jurisdiction to entertain it. 2 It followed that, both learned counsel were of the view that the proceedings conducted by the said learned magistrate were a nullity. They all prayed for an order nullifying the same, quashing the judgment and conviction and setting aside the sentence. We are, on our part, clear in our mind that, section 256A (1) of the C. P. A., as is section 45 (2) of the Magistrates' Courts Act, Cap. 20 (the M.C.A.) which relates to transfer of appeals; vests the High Court with powers to transfer a case to a specific resident magistrate upon whom extended jurisdiction has been granted according to law. It is now settled law that when a transferred case is heard by a magistrate who is not named in the transfer order, then, notwithstanding the fact that he is vested with extended jurisdiction, the proceedings and judgment emanating therefrom become a nullity for having been conducted and rendered contrary to the transfer order and therefore without jurisdiction. See for instance, the cases of Abdallah Ramadhani @ Sindano v. Republic (Criminal Appeal No. 184 of 2022) [2024] TZCA 816 (22 August 2024); Emmanuel Daudi v. Republic (Criminal Appeal 295 of 2019) [2022] TZCA 701 (10 November 2022); Ally Athuman and Charles Mazengo v. Republic [2009] T. L. R. 26; Heriel Adamu Kimaro and 4 Others v. Republic (Criminal Appeal No. 237 of 2007) [2010] TZCA 277 (22 3 February 2010); Abraham Ramadhani @ Chino v. Republic (Criminal Appeal No. 130 of 2013) [2013] TZCA 182 (12 December 2013); and Masana Mwita @ Marwa v. Republic (Criminal Appeal No. 194 of 2012) [2014] TZCA 2289 (23 July 2014). In the latter case, we further emphasized that: "...... section 256A envisages that the magistrate exercising extended powers to whom a case is transferred must take the piea as we/i conduct the trial. We wiii hasten to add that the PRM Ext. Jur. to whom the case has been transferred as above must take the plea and conduct the trial to completion unless for some reason, which must appear on the record, the PRM Ext. Jur. who had started to deal with the matter is unable to proceed with it to the end." We had an opportunity to peruse the record of appeal in light of the foregoing position of the law. Indeed, at page 12 of the record of appeal there is an order by Mtulya J. transferring the case that gave raise to the instant appeal to Myombo (SRM - Ext. Jur.). It reads thus: Date: 24.05.2022 Coram: F. H. Mtulya, J. Parties: Absent Court: In terms o f the provision o f section 256A (1) o f the Criminal Procedure Act [Cap. 20 R.E 2019], I hereby direct the transfer o f this case to and be heard by Hon. Y. C. Myombo, Resident Magistrate with Extended Jurisdiction. Ordered accordingly. F. H. Mtu/ya Judge 24.05.2022 The record of appeal further confirms that it is Myombo (SRM - Ext. Jur.) who conducted the preliminary hearing. He conducted the preliminary hearing on 20th June, 2022 which is evident at page 13 through 19 of the record of appeal after the transfer order of 24th May, 2022. However, the very record of appeal is evident that it is Moshi (PRM - Ext. Jur.) who conducted the trial on 10th May, 2023 as is evident at page 20 to 42 of the record of appeal, and composed and delivered the judgment on 7th June, 2023. Our perusal of the record of appeal could not land our eyes on any order that re-transferred the case from Myombo (SRM - Ext. Jur.) to Moshi (PRM - Ext. Jur.). We thus agree with the submissions by both learned counsel that, the defect is a fatal irregularity that vitiates the entire 5 proceedings that were conducted by Moshi (Ext. Jur.) from 10th May, 2023 to 7th June, 2023 when he delivered the judgment. They are therefore a nullity. In the event, we allow the appeal. Consequently, we nullify the proceedings before Moshi (PRM - Ext. Jur.) and quash the judgment dated 7th June, 2023. Henceforth, we remit the record to the High Court for expeditious process for the hearing of the appeal by RM - Ext. Jur. in accordance with the law. In the meantime, the appellant shall remain in custody. DATED at MUSOMA this 20th day of March, 2025. M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 21st day of March, 2025 in the presence of Mr. Cosmas Tuthuru, learned Advocate for the appellant also in presence of Appellant via video link from Musoma District Prison and Mr. Davis Julius Katesigwa, learned State Attorney for the respondent/Republic, is hereby