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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA CRIMINAL APPEAL NO. 14456 OF 2024 (Originating from the District Court of Ileje at Itumba in Criminal Case No. 17 of 2024) MURABA MALEMA MBEMBELA.…………………………… APPELLANT

VERSUS THE REPUBLIC……………………...…..………….………..RESPONDENT

JUDGMENT Date: 25 September 2024 & 1 October 2024 SINDA, J.: The appellant was charged and convicted of the offence of obtaining money by false pretense contrary to Section 301 and 302 of the Penal Code [Cap 16 R.E 2022] (the Penal Code). The District Court of Ileje at Itumba (the Trial Court) convicted the appellant and sentenced him to five (5) years imprisonment and to pay Seven Hundred Thousand Tanzanian shillings (TZS 700,000/=) as compensation to one Amos Edson Mwito (the Complainant). 1 The particulars of the offence are that on 8 December 2023 at Msia village within Ileje District in Songwe region, it was alleged by false pretence and with intent to defraud, the appellant obtained money to the tune of Seven Hundred Thousand Tanzanian shillings (TZS 700,000/=) from the Complainant. The appellant entered an agreement with the Complainant that he would sell him a hut for business. However, before they reduced their agreement into writing, the appellant was nowhere to be found. The respondent successfully sued the appellant at the Trial Court. Dissatisfied with the decision, the appellant challenges his conviction and the corresponding sentence on the following grounds: 1. That, the trial court erred in law and fact to determine a civil case as a criminal matter without jurisdiction to do so.

2. That, the trial court erred in law and fact to pass excessive punishment exceeding its sentencing jurisdiction.

3. The trial court erred in law and fact to convict and sentence the appellant by considering fabricated and contradictory evidence. On 20 August 2024, the appellant filed additional grounds of appeal as follows hereunder: - 2 1. That, the trial court erred in law and facts to convict and sentence the appellant in a case that was not proved to the required standard.

2. That, the trial court erred in law and facts for its failure in analyzing and evaluating evidence put forth before it. Hearing of appeal was through oral submissions. The appellant was represented by Ms. Nyasige Kajanja, learned counsel. The respondent was represented by Mr. James Mwenda, learned State Attorney. Submitting for the appeal, Ms. Kajanja prayed to abandon ground two in the petition of appeal. Arguing the first ground in the petition of appeal, the counsel stated that the matter arose from a contract between the appellant and the Complainant. That, the Complainant bought a hut for business from the appellant. However, before they wrote an agreement, the appellant disappeared and was not seen until May 2024. As such, the counsel argued this to be a civil matter and not a criminal. The counsel jointly argued the third ground in the petition of appeal and the first in the additional grounds of appeal. She submitted that the case was not proved beyond reasonable doubt because the prosecution failed to prove 3 all the ingredients of the case. Further, the court convicted and sentenced the appellant by considering fabricated and contradictory evidence. The witnesses did not tell the court that the hut was not there or whether it was owned by another person other than the appellant. Ms. Kajanja cited the case of Eva Apolinary vs. Daniel Sinda, Criminal Appeal No. 10 of

2021, HC at Musoma to support her argument. The counsel was of the view that the Trial Court did not evaluate the evidence of the defense when composing its judgment. That, the court just provided a summary of evidence but it did not analyze or evaluate the same. Therefore, such is an error in law and the judgment of the Trial Court cannot stand. She cited the case of James Bulow and Others vs Republic [1981] TLR at page 282. In his reply submission, Mr. Mwenda agreed with the first ground of appeal in the petition of appeal. That, the Trial Court erred in law and fact to determine a civil case as a criminal matter without having jurisdiction. He added that the issue was contractual between the Complainant and the appellant. That, although there are some elements of criminality on the side of the appellant. Mr. Mwenda opined that it was required to first exhaust civil remedies before invocation of the criminal process. He cited the Section 4 4 (3) of the Criminal Procedure Act [Cap 20 R.E 2022] (the CPA). There was no rejoinder by the appellant’s counsel. After both parties finalized their submission, I am aware that the respondent does not contest the appeal. Nonetheless, I will proceed to deliberate on whether I find this appeal with merit based of the arguments, laws and case laws, together with the records of the Trial Court. As I address the first ground of appeal in the

petition of appeal, I will be guided by Section 4 (3) of the CPA, that provides: “4 (3) Notwithstanding subsection (2), where a matter is of a civil, administrative or criminal nature, as the case may be, exhaustion of the remedies in civil or administrative domains shall be mandatory prior to the invocation of the criminal process in accordance with this Act.” In relation to the above provision, while also revisiting the proceedings of the Trial Court (the Proceedings). Particularly at page 5, the Complainant stated and I quote: “We agreed that, we will reduce our payment into writing on the other date, before we reduced our agreement in writing accused person was nowhere to be seen in our village, sometime May 2024 it’s when accused person was again seen in on village…” Evidently so, the evidence from all the prosecution witnesses reflected the matter to be civil of nature and not criminal nature. They all explained on 5 how the Complainant paid money for the hut to the appellant, and how the appellant failed to fulfill his end of the bargain. That is, to hand over the property to the Complainant. That being the case, I agree with both the appellant and the respondent that the matter at hand is purely civil in nature. The Complainant, as submitted herein above, should have exhausted first the remedies available in civil domain before embarking on a criminal case. In the case

of James Duru @ Nade vs. The Republic, Criminal Appeal No. 100 of 2020, the Court of Appeal at Moshi was faced with a similar situation. Where it stated: “Thus, in our considered view, the entire evidence on record is not in support of a criminal charge. Instead, in the circumstances, the proper course was for PW1 to commence a civil action against the appellant to seek specific performance.” Consequently, I find this ground of appeal with merit and is enough to dispose of the entire appeal. I will therefore refrain from discussing the remaining grounds. I allow the appeal and proceed to quash and set aside the conviction and sentence of the Trial Court. If the Complainant so wishes, he may institute 6 a civil case to recover the monies alleged to have been paid to the appellant. It is so ordered. Right of appeal explained. DATED at MBEYA on this 1 day of October 2024 A. A. SINDA

JUDGE 7