NAOMI NGASA

IN HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PC CRIMINAL APPEAL NO. 17102 OF 2024 (Arising from Criminal Appeal No. 11 of 2023 in the District Court of Ilemela, originating from Criminal Case No. 253 of 2023 Ilemela Primary Court) NAOMI NGASA ............................................................................ APPELLANT VERSUS RAJAB VENANCE ..................................................................... RESPONDENT JUDGMENT 06/12/2024 & 14/02/2025 ROBERT, J: This appeal arises from the decision of the Primary Court of Ilemela in Criminal Case No. 253 of 2023, in which the appellant was charged with the offence of stealing contrary to sections 258 and 265 of the Penal Code, Cap. 16 R.E. 2022. The trial court found the appellant guilty, convicted her, and sentenced her to five months of conditional discharge, requiring her to maintain peace and good behavior. Additionally, the court ordered the appellant to pay compensation of TZS 1,010,000/= to the respondent. Aggrieved by this decision, the appellant lodged an appeal before the District Court of Ilemela, challenging both the conviction and the sentence. However, the first appellate court upheld the decision of the 1 trial court. Undeterred, the appellant has now filed the present appeal, raising a single ground of appeal: 1. That the trial Magistrate erred in law and fact by affirming the Primary Court's decision, which was based on a defective charge. When this matter came up for hearing, the appellant was represented by Mr. Stephen Kaswahili, learned Counsel, whereas the respondent appeared in person. Mr. Kaswahili, in support of the appeal, argued that the charge sheet filed before the trial court was defective as it failed to specify the subsection of section 258 under which the appellant was charged. He pointed out that section 258 has six subsections, and the failure to indicate the specific subsection deprived the appellant of the right to fully comprehend the nature of the charges against her. To substantiate his argument, he cited the case of David Halinga v. Republic, Criminal Appeal No. 12 of 2015, where the Court of Appeal held that citing section 130 of the Penal Code without specifying the relevant subsection rendered the charge non-existent, as section 130 comprises multiple subsections defining different categories of offences. Similarly, in Mohammed Kaningu v. Republic [1980] TLR 2 279, the court emphasized that a charge sheet must be drafted in a manner that enables the accused to understand the precise offence charged. Mr. Kaswahili further submitted that the omission of the relevant subsection prejudiced the appellant’s defense, as she could not adequately prepare to respond to the charges. He, therefore, prayed that the conviction and sentence be quashed, and the appellant be acquitted. In response, the respondent contended that both the trial and first appellate courts properly found the appellant guilty based on the evidence presented. He asserted that his properties were stolen and that his reply to the petition of appeal adequately addressed the appellant's arguments. He prayed for the dismissal of the appeal and the confirmation of the conviction and sentence. The primary issue for determination in this appeal is whether the trial court’s conviction of the appellant was based on a defective charge and, if so, whether the defect vitiated the proceedings. Section 135 of the Criminal Procedure Act provides that a charge must clearly describe the offence and cite the specific provisions of the 3 law creating the offence. In the present case, the charge sheet merely cited sections 258 and 265 of the Penal Code without specifying the subsection of section 258 under which the appellant was charged. The failure to specify the subsection under section 258, which contains six different provisions defining various aspects of stealing, deprived the appellant of the right to know the precise charge she was facing. This omission rendered the charge defective and prejudiced the appellant’s ability to adequately defend herself. As held in David Halinga v. Republic and Mohammed Kaningu v. Republic (supra), a charge must be framed in a way that allows the accused to understand the nature and gravity of the alleged offence. Given the fundamental nature of this defect and the failure of both the trial and first appellate courts to address it, this court finds that the conviction cannot be sustained. The omission was not a mere procedural irregularity but an incurable defect that went to the root of the charge, rendering the proceedings null and void. For the foregoing reasons, the appeal is hereby allowed. The conviction is quashed, and the sentence imposed by the trial court, as 4 affirmed by the first appellate court, is set aside. Consequently, the appellant is acquitted. It is so ordered. K. N. ROBERT JUDGE 14.2.2015 5