Judg

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 000018324 OF 2024 MT 99164 CPL CHACHA ADAM WAINNG'ARI .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS JUDGE ADVOCATE GENERAL .............................. RESPONDENT / DEFENDANT JUDGMENT BWEGOGE, J NGUNYALE, J KIREKIANO, J KIREKIANO; J. Before the General Court Martial (the GCM) held at Land Force Command Headquarters Nyerere Officers Mess, Kibaha Pwani, the appellant was charged with the offence of manslaughter contrary to section 195 (1) & (2) of the Penal Code Cap 16 [R.E 2019] read together with Section C. 65 of the Code of Service Discipline, First schedule to National Defence Act, Cap 192 [R. E 2019]. It was alleged that on 23rd March 2021, while at Beni Mavivi, Democratic Republic of Congo (DRC), the appellant, without intention, caused death of one MT 121656 Private Daudi Ally Mbwana. The appellant pleaded not guilty protesting his innocence. Upon full trial on 23rd June 2023, the appellant was found guilty and sentenced to dismissal from the Defence Forces from the date of the judgment. Not amused by the GCM's findings, he preferred this appeal on the grounds as indicated hereunder. For reasons that will be apparent in this judgement, we prefer not to summarise the evidence leading to the appellant's trial and conviction; instead, we will briefly recap the proceedings that prompted this appeal. When the charge against the appellant was read and explained, the appellant, Page. 1 Hon. ARNOLD KIREKIANO having pleaded not guilty, the trial did proceed, where the prosecution paraded 11 prosecution witnesses and 15 exhibits were tendered. On May 12 2023, the defence side made a submission of no case to answer. Upon hearing the party’s submission, the trial court was not convinced. It made a ruling that a prima facie case was made out sufficient to require the appellant to enter a defence on the offence charged. Before the defence side could open defence, the prosecution side under C 115 (1) made a prayer to amend the charge so as to “ insert” (sic) the word “kwa uzembe” meaning negligently. On 19th June, 2023 the trial court considered that such amendment was just technical thus within the powers of Judge Advocate, it went on to allow the prayer, and made an order to the effect that words Kwa uzembe be inserted in the charge sheet. The defence hearing thus did proceed on the new charge and culminated in the appellant's conviction as stated. The grounds of appeal are; 1. . That the Judge Advocate erred in law by misdirecting himself and incorrectly interpreting the meaning of the phrase 'a technical defect' in a charge sheet as per Section C. 115 (1) of the National Defence Act read together with Regulations 112.59 (1) of the Defence Forces Regulations [Cap 192 R.E 2002], his failure led GCM president to amend Charge Sheet [GCM Exhibit. ‘D’], an amendment which grossly prejudiced the conduct of Appellant's defense case. 2. That the Judge Advocate erred in law and facts, by incorrectly directing the president to grant application by prosecution to make amendment of charge sheet [GCM Exhibit “D”] post closure of prosecution case and finding of case to answer against the Appellant, the amendment that introduced element of manslaughter by ‘negligence’ [...kwa uzembe] which the prosecution did not adduce any evidence thereto. 3. That the trial GCM erred in law and facts, by failure to find that the particulars in the charge sheet [GCM Exhibit “D”] did not disclose any offence of manslaughter by negligence under Section 195 (1) (2) of the Penal Code CAP. 16 [R.E 2019] read together with Section C. 65 of the Code of Service Discipline, First Schedule to Notional Defence Act, CAP 192 [R.E 2002], 4. That the trial GCM erred in law and facts, by failure to find that allegations against the Appellant amount to unlawful killing in law as narrated in GCM “Exhibit D” and "PE-11" and not manslaughter, hence, to find Appellant with no case to answer. 5. That the trial GCM erred in law and facts by failing to find that the evidence adduced by the prosecution against the Appellant did not prove the offence of manslaughter by negligence inked in GCM Exhibit "D" to the required standard of proof in criminal cases. Page. 2 Hon. ARNOLD KIREKIANO 6. That the trial GCM grossly violated the requirement of provisions of Section C. 116 (4) of the National Defence Act read together with Regulations 112.06 (2) of the Defence Forces Regulations [Cap 192 R.E 2002] in relation to determination of questions of law when the Judge Advocate is appointed to officiate at the GCM trial. It is noted here that under Rule 9 of the National Defence, Rules of Appeal Procedures, 1966, GN. No. 309 of 4 November 1966, the appellant also added another ground of appeal. That, the trial GCM erred in law and facts by arriving at finding of guilty against the Appellant, the finding that is based on defective 'Charge Sheet' GCM "Exhibit D" contrary to requirement of Section C. 115 (3) of the National Defence Act read together with Regulations 112.59 (3) of the Defence Forces Regulations [Cap 192 R.E 2002], During the hearing of the appeal, the appellant was represented by Mt. Col. (Rtd) Godwill Fredrick Benda, and the respondent was represented by Capt. Kasamawe and Leut. Deogratius Mwakapimbila. The appeal was heard by way of written submissions. In support of the appeal, Mr. Benda began with the extended grounds of appeal and then submitted the 3rd, 4th, and 5th grounds together, concluding with the 1st and 2nd grounds. On the extended ground of appeal. It was his submission that the conviction and sentence were based on a defective charge sheet, ‘Exhibit D’. He said the defect emanated from a purported amendment by the president of the trial GCM on the 19th June 2023, which was done without power or legal authority. Reference was made to pages 173 and 184 of the proceedings regarding the president's decision to amend the charge by inserting the phrase “kwa uzembe”, which is negligently following the prosecution's oral application. The appellant cited Section C. 115 (1) (2) (3) CSD, to the effect that the amendment must have; one minute of amendment (new matter introduced) two, endorsement of amendment upon original charge sheet i.e name, rank, and authority' of the amending individual; and three the signature of the amending individual/authority. The purported amendment is neither endorsed, dated nor signed by the president of the trial GCM, making the amendment invalid in law, including the finding and sentence. On third ground, the appellant faults the trial GCM that it failed to find that particulars of offence in the original charge sheet ‘Exhibit D’ did not disclose an ‘Offence of Manslaughter by Negligence under section 195 (1) and (2) of Cap 16 (R.E 2019). He said that the prosecution evidence adduced before the GCM was trying to prove allegations against the Appellant contained in ‘Exhibit D’ (the charge) before Page. 3 Hon. ARNOLD KIREKIANO it was controversially amended after closure of the prosecution case and a finding that the appellant has a case to answer on the original charge. The appellant's counsel argued, the prompted amendment was an afterthought following the Applicant’s submission that the particulars of offence did not disclose an offence of manslaughter under section 195 (1) (2) of the Penal Code [Cap 16 R.E 2019]. He said these shortcomings offended DFR 106.13 (b) (i) and (ii), similar to section 135 CPA Cap 20, which requires disclosing such particulars as a statement of the particulars of the act, omission, conduct, disorder or neglect constituting the offence. To buttress his submission, he cited this court decision in Yohana Lusinde Versus Republic, (Cr Appeal no 92 of 2022) |2022] T Z H C 11016 (02nd August 2022), where at page 6, this court cited Court of Appeal decision in Mnazi Philimon Versus Republic (Criminal Appeal No. 401 of 2015) (2017/ TZCA 400 (12,h October, 2017) that the accused person must know the nature of the case facing him, and this can only be achieved if the charge discloses the essential elements of the offence. On the second limb, that is the fourth and fifth grounds, the same involves the appellant's grievance on evaluation of evidence. The appellant counsel argued that the trial GCM failed to find that the evidence adduced by the prosecution did not prove the offence of manslaughter by negligence. He said the prosecution had neither previously adduced evidence to show that the appellant acted negligently 'kwa uzembe' in committing the alleged offence. He made his points thus; one the amendment introduced new substantial facts in the particulars of offence which were not there during prosecution case thus not covered by 11 prosecution witnesses and I5 exhibits including PE-7 (Cautioned Statement of the Appellant) and PE-11 (Extra Judicial Statement of the Appellant) Two, it indeed brought in a new charge sheet which the Appellant didn't plead thereon. Three, no prosecution witness was recalled to be cross examined by the Appellant on such new particulars of offence. All these circumstances made the Appellant to fail to understand how to defend himself to what extent and on what allegations against him. The appellant submitting on the first and second grounds, pressed on the issue of amendment of the charge, argued that section. 92 CSD read together with Regulation 111.05 Defence Forces Regulations which provides for authorities who has power to convene Courts Martial. The appellant trial was convened by Lt Gen SI I Othman on 16th May. 2023 approving the substance of the offence including the particulars of offence. Thus, any substantial change/amendment except clerical errors or omission should have been authorized by the convening authority himself and not president of GCM. Page. 4 Hon. ARNOLD KIREKIANO On part of the respondent, responding to the submission the responded stated by arguing that Regulation 112.59 (3) of the Defence Forces Regulation, Voll II cited in the extended ground of appeal, was wrongly cited, since the same does not exist in the Defence Forces Regulations hence making the said extended ground of appeal incompetent before this court and should be disregarded. To buttress his argument, he cited decisions in Robert Anthony @ Bonge and Others Vs the Republic, Misc. Criminal Application No. 18 of 2021, but also Hussein Mgonja vs The Trustees Tanzania Episcopal Conference, Civil Revision No. 2 of 2002, CAT at Arusha that non-citation or wrong citation of provisions of law renders the application incompetent. Yet the respondent submitted that the charge was amended in the manner appearing at Page 108 to page 185 of proceedings. It was submitted that such amendment by inserting the words “kwa uzembe” was made after the deliberation with the parties. He was of the submission that to make a point thatamendment of a charge sheet is void, it must be in a manner that such amendment prejudiced the accused's that the accused did not understand the nature of the charge. Reference was made to section C. 115 (1) Of the Code of Service Discipline provide that “ The president, if he is of the opinion that the accused person will not be prejudiced in the conduct of his defence by an amendment shall make such order for the amendment of the charge. It is the respondent's argument that the appellant understood the nature of his offence after the said amendment, and that such amendment did not affect the nature of his defence, as can be seen from page 185, where he acknowledged the amendment, and he was the one who indicated to be ready for defence. He also cited Regulation 101.06 (1) of the Defence Forces Regulation, Voll II arguing that a finding made or a sentence passed by a service tribunal shall not be invalid by reason only of deviation from the procedure prescribed in Defence Forces Regulations, unless it appears that injustice has been done to the accused person by the deviation. On the third ground, the respondent agrees that a charge sheet must contain a statement and such particulars of offence to enable the accused to prepare his defence. He said thatin the military justice system, such a requirement has been provided under R.106.13(b) (i) and (ii) of the DFR, Vol II, which requires a statement of the particulars of the act, omission, conduct, disorder or neglect constituting the offence. Page. 5 Hon. ARNOLD KIREKIANO He said the charge answers all necessary questions, including what happened, when, where, and how, sufficiently to enable the accused to understand the nature of the offence for which he was charged. Thus, how the charge was drafted, met the standards in rule 106.13(b)(i) and (ii) DFR Vol II and R.106.15(1) and (2) DFR Vol II. On grounds four and five, he made reference to the appellant assertion and took a view that even by agreeing with the appellant submission that, the allegations against the Appellant amounted to unlawful killing in law, thus it affirms the fact that the Appellant has committed the offence of unlawfully killing of MT 121656 Private Daudi Mbwana Ally. He strongly disputes the contention that such unlawful killing was not manslaughter. He cited decision in Deogratius Deemay Gurtu Vs The Republic (Criminal Appeal No.553 of 2016) P. 15 where the court said “Manslaughter is distinguished from murder by a Lack of intention to kill or cause bodily harm. He said, based on evidence on record, including (Cautioned statement of the Appellant) and GCM Exhibit PE-11 (Extra Judicial Statement of the Appellant), the offence of manslaughter was proved. On the first and second grounds, the respondent states that when it appears that a charge sheet suffers defects, this might prejudice the general conduct of the case, the law gives room for amendment of a charge sheet to cure such unforeseen defects. He said, in this appeal the room for the amendment of a charge sheet is under section C.115 of the Code of Service Discipline, the first schedule to the National Defence Act [CAP 192 R.E 2002] and Regulation 112.59 of DFR, Vol II. Reading from the section and the regulation, the president of the court-martial can amend a charge sheet based not only on a technical defect but also on mistakes in the names and descriptions of the parties or mistakes attributable to a clerical error or omission. In the present Appeal an application for the amendment of GCM Exhibit ‘D’ came as a result of the omission of the phrase “kwa uzembe’. The phrase “kwa uzembe” that is negligently sought to be added based on the prosecution view that the offence was committed under both limbs that is; unlawfully causing death of MT 121656 Private Daudi Mbwana Ally and by an unlawful omission causing death of MT 121656 Private Daudi Mbwana Ally. The respondent thus argues that there was no misdirection on the part of the judge advocate to find the circumstance as technical, thus within his power to amend the same. The respondent thus invited this court to find that the extended ground of appeal is incompetent and to dismiss the other grounds of appeal. Page. 6 Hon. ARNOLD KIREKIANO In his rejoinder Mr Benda responded that it is true that Sub Reg. (3) to Reg. 112.59 does not exist in the Defence Forces Regulations; however, he strongly disagrees with the Respondent’s Counsel that this wrong citation vitiates the Appellant’s extended ground of appeal. His stance is that the incorrect citation of that sub-regulation does not affect the substance of the Appellant’s ground of appeal under section C. 115 (3) of the Code, which is correctly cited. Responding to the respondent's submission, he argued that the respondent misapprehended his submission in chief. He said the complaint that the charge did not disclose sufficient particulars is based on the charge before the purported amendment. He argued that the particulars of offence in ‘Exhibit D' prior purported amendment did not disclose either unlawful act or omission. On the 4th and 5th grounds, he insisted that the Appellant’s submission in support of that ground of appeal addresses accidental killing and not unlawful killing. On our part, we wish to start with the appellant's extended ground of appeal. Before we deliberate on this, we have considered the respondent's argument that the appellant's extended ground of appeal was pegged on the wrong provision and was thus incompetent. We are alive to the authorities cited; that is, Robert Anthony @ Bonge's and Hussein Mgonja’s case (supra) on wrong citation, beseeching us to find it fatal and disregard the extended ground of appeal. We, however, hasten to say that, our concern was whether, having filed the grounds of appeal, the appellant could add another ground as he did. This is permissible under Rule 9 of The National Defence Rules of Appeal Procedure G.N. No. 309 of 1966. The same provides that a statement of appeal may be amended or extended by the Appellant or his advocate at any time five clear days before the commencement of the hearing. This was done in this appeal. With that note, we wish to amplify the development of jurisprudence by stating that the wrong citation of the enabling law will not necessarily lead to the dismissal of application or prayer. What is important is, if the court can still understand the intended prayer or legal argument and has jurisdiction to hear the matter based on the correct law. We wish to remark in a few words that in the wake of the overriding objective principle, gone are the days when wrong citation of the provision of the law was fatal. Currently, this is not the case, as the respondent has argued. Our reasoning on the development was fortified by decisions in Bin Kuleb Transport Company Limited vs Registrar of Titles & Others (Civil Application 522 of 2020) [2022] TZCA 259 (9 May 2022), Alex Msama Mwita vs Emmanuel Nasuzwa Kitundu & Another (Civil Application 538 of 2020) [2022] TZCA 649 (20 October 2022) to mention few. Page. 7 Hon. ARNOLD KIREKIANO With that remark, we find the extended ground of appeal competent, and we now wish to address the same and having considered the same the same complaint is reflected on the first and second grounds we shall equally address the same after the extended ground of appeal. Now, on the propriety of the amendment of the charge, the power to amend the charge is provided under C. 115 (2) (3). Read together with regulation 112.59 (3) DFR VOL II (1) Where, at any time during a trial by court-martial it appears to the president that there is a technical defect in a charge, the president, if he is of the opinion that the accused person will not be prejudiced in the conduct of his defence by an amendment, shall make such order for the amendment of the charge as he considers necessary to meet the circumstances of the case. The procedure further requires that, if the accused person requests an adjournment of the court-martial the same shall be granted to allow him to meet the charge, the amendment shall be endorsed on the charge sheet and signed by the president of the court-martial; it shall be treated as the original charge sheet. To appreciate the appellant's complaint, we find it suitable to have a glimpse of the record, which reads as follows: PRES: Upande wa Jamhuri na upande wa utetezi Mahakama imetafakari na kupitia hati ya mashtaka makosa aliyoshtakiwa nayo mshtakiwa na maelezo na kuona kwamba ombi lililoletwa na upande wa Jamhuri ni moja ya “technical defect” katika shtaka hili na wa kuzingatia kwamba kwa Kifungu cha C.115 cha Sheria ya Nidhamu Jeshini haiathiri haki ya mshtakiwa. Maamuzi ya mahakama ni kwamba kipengele hichi kiingizwe kwenye maelezo kama walivyoomba upande wa Jamhuri. JA: “Defence” mmesikia maamuzi ya mahakama? DC: Samahani Mhe. naomba tujue kwamba neno hilo linawekwa wapi? PRES: Katika mashtaka kipengele cha maelezo twende mpaka pale Pasi na kukusudia alisababisha ndiyo tunaingiza neno lililokubaliwa kwa uzembe kufyatuka kwa risasi idadi nne. JA: “Defence the way forward?” DC: Asante Mhe. sisi tunaomba tuendelee tuanze kujitetea sasa hivi na kabla hatujaanza kujitetea, tunaomba tutumie haki yetu katika Kanuni ya 112.05 (14). Page. 8 Hon. ARNOLD KIREKIANO Based on the above, two issues arise from the extended grounds of appeal and the first ground: one, whether the president of the GCM could order an amendment in the manner it was done, and two, whether the appellant was prejudiced. We have considered the appellant's complaint. We note that, under the above-cited provisions, as a presiding officer, the president of GCM could make such an amendment to cure technical defects and serve the end of justice in the trial. Technical defect here could include but not limited to, the proper wording in particular of the charge as opposed to new offence. However, such powers are subject to ensuring that no prejudice is occasioned to the accused person. In this appeal, it is worth noting that the amendment was made after the prosecution had closed its case. Given the manner in which it was done, we wish to express our concern about the apparent prejudice to the appellant. As indicated above, the amended charge is treated as the original charge. Thus, even assuming that the same was aligned with the evidence available on the prosecution side, the accused did not have the opportunity to controvert it by way of cross-examination on the new fact added in the charge. On this complaint, we are more concerned with the procedure than the substance of such an amendment. We say so because any allegation may be valid as long as the accused is accorded the opportunity to respond to the same. We have also seen no response to the amendment by way of a fresh plea. DFR Vol II. R 112.05 (7) requires that the plea of the accused to each charge shall be recorded. Now, the way it happened here indicates a fatal omission, as the trial of the new charge was not held after plea taking of the amended charge. The appellant's line of argument is that the fact added in the charge was itself an allegation. We have considered the respondent's argument that the same was consented to. With respect, it is one thing to consent to an amendment and another to follow the procedure after the amendment. In the absence of a fresh plea, and given how the appellant responded to the charge after amendment, we are unable to take the path suggested by the respondent's counsel to let it go. We are respectful of the procedure adopted by the trial GCM to deliberate this matter in chamber by all parties; however, we hold that this ought to be perfected by law, which is the perfection of reason. We are fortified by the decision of court of appeal in the case of Omary Juma Lwambo vs Republic (Criminal Application No. 48/01 of 2022) [2024] TZCA 456 (13 June 2024) In that decision, the court of Appeal considered section 234 (1) and (2) of the CPA, on amendment of the charge which is akin to C 115 (2) (3). Citing Tluway Akonaay v. Republic [1987] T.L.R 92, the Court had this to say on the effect of such an omission; Page. 9 Hon. ARNOLD KIREKIANO "It is mandatory for a plea to a new or altered charge to be taken from an accused person, as otherwise the trial becomes a nullity” Based on what we have discussed above, we hold that the president had power to amend the charge, the extended ground is equally resolved As such such powers were subject to limitations to avoid prejudice to the accused this was not observed; For clarity, this should not have been done after the prosecution had closed its case. The reason is that the accused cannot enter a defence on a case founded on a charge different from the one established by the prosecution's case. We merit the first and second groundsof appeal. With that note, the appellant's trial was vitiated from the date of the amendment to the charge. The proceedings after the ruling of the case to answer, defence, and the judgment were thus a nullity and are quashed from the record. It is for this reason we shall not deliberate on the fifth ground, which is basically on evidence. We have also considered the argument in the third ground of appeal that the charge before the amendment did not, in the first place, disclose any offence of manslaughter by negligence under Section 195 (1) and (2) of the Penal Code. The appellant's argument here is that, the charge missed sufficient particulars thus offended DFR 106.13 (b) (i) and (ii), similar to section 135 CPA Cap 20, which requires the disclosure of such particulars as a statement of the particulars of the act, omission, conduct, disorder or neglect constituting the offence. At this point, we accede to this proposition on the standard in drafting of the charge. This is the requirement under DFR 106.15 as rightly submitted by the respondent counsel, states: (1) Every statement of the particulars of an offence in a charge sheet shall include sufficient details to enable the accused to know exactly what he is charged with, so that he may prepare his defence and direct it to the occasion and the events indicated in the charge. (2) A statement of the particulars of an offence shall, when practical, include an allegation of the place, date and time of the alleged commission of the offence. Page. 10 Hon. ARNOLD KIREKIANO As we amplify the need to ensure standards in drafting the charge, we bring to light the excerpt of the court of appeal decision on the subject in Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) Ngwembe JA at page 3 thus; “It is an elementary knowledge of criminal justice that the cornerstone of any criminal trial is the charge sheet. The charge sheet is the heart, brain and blood of criminal justice and a fair trial. It plays a duo role of informing the accused person on the nature of his accusation and allow him to prepare his proper defense. Apart from that, the charge sheet notifies the trial court on the subject matter with a view to determining its jurisdiction and prepare the proper procedure to be applied during trial. Therefore, the charge sheet is the most important document in any criminal trial”. We have reviewed the charge against the appellant, as presented in Exhibit D, before its amendment, which is the appellant's complaint. The same stated thus; Kwamba yeye mnamo tarehe 23 machi, 2021 majira ya Saa 16;30 akiwa Beni Mavivi, nchini Jamhuri ya Kidemokrasi ya Kongo (DRC) kwenye majukumu ya Ulinzi wa Amani chini ya Umoja wa Mataifa, yeye na Private Daud Mbwana Ally (Marehemu) akiwa anajaribu kuiweka vizuri silaha ya Private Daudi Mbwana Ally iliyokuwa imewekwa vibaya kiusalama karibu yake, pasi na kukusudia alisababisha kufyatuka kwa risasi idadi nne za silaha aina ya Sub Machine Gun yenye Nambari za Usajili 071098, ambapo kati ya (missing) hizo risasi idadi mbili zilimpiga eneo la mgongoni na risasi moja ilimpiga eneo la Kichwani na kumsababishia kifo MT 121656 Private DAUDI MBWANA ALLY aliyekuwa amelala usingizi kitandani kwake. Mr. Benda went on to attack it, arguing that it did not disclose an offence of manslaughter by negligence instead it just stated allegation of unlawful killing. On the contrary view, the respondent's counsel argued that the charge answers all necessary questions, including what happened, when, where, and how, sufficiently to enable the accused to understand the nature of the offence for which he was charged, be it unlawful or negligence the offence of manslaughter was disclosed. We are mindful of the provision creating the offence, that is, section 195 (1) of the Penal Code. A quick grasp of the same is that it is the offence to cause death by an unlawful act or omission; what is essential here is that the offence created is killing without malice aforethought. Deogratius Deemay case (considered). Again, under section 195 (2), it provides what is meant by unlawful omission. Mr Benda beseeched us to find that the charge did not disclose the offence of manslaughter by negligence. This reasoning did not persuade us since there is no distinct offence of manslaughter by negligence. Page. 11 Hon. ARNOLD KIREKIANO Going by the particulars in the charge, we are satisfied that the same sufficiently explained the particulars of the offence of manslaughter. With that, the proceedings of the GCM were founded on a valid charge before it was amended. We accordingly overrule the third ground of appeal. We have deliberated above on the extended ground, 1st and 2nd grounds of appeal, that the trial was vitiated after the amendment of the charge. Based on our deliberation on the third ground, we have considered the way forward. Basically, retrial will not automatically be ordered, there are plenty of decisions on this, including Fatehali Manji v. The Republic [1966] EA 343 and Shaban Abdallah v. Republic Criminal Appeal No. 255 of 2013, which held that it is not the rule of thumb that a retrial will always be ordered when the original trial is illegal or defective. A retrial should only be made where the interests of justice require it. Having considered how and to what extent the proceedings were vitiated, and having reflected on the entire proceedings, we are satisfied that justice dictates that a retrial be conducted. It is thus ordered that a hearing be conducted afresh, starting from the defence, on the charge in which the appellant was found to have a case to answer. Appeal allowed to the extent indicated. Dated at DAR ES SALAAM this 28th of March 2025 . O. F BWEGOGE JUDGE OF THE HIGH COURT D. P NGUNYALE JUDGE OF THE HIGH COURT Page. 12 Hon. ARNOLD KIREKIANO A. J KIREKIANO JUDGE OF THE HIGH COURT Page. 13 Hon. ARNOLD KIREKIANO