RENATUS MISIGALO 2 OTHERS VS THE REPUBLIC CRIMINAL APPEAL NO 744 OF 2023 1

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MUGASHA. J.A.. MWAMPASHI. 3.A. And NGWEMBE. 3.A/1 CRIMINAL APPEAL NO. 744 OF 2023 RENATUS MISIGALO........................................................... 1st APPELLANT MWENDAPOLE ANDREA......................................................2nd APPELLANT KALENZO RUHINDA @ NGARAMANANJE............................. 3rd APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrates' Court of Bukoba at Ngara) (Ndale. SRM. Ext. Jurt dated the 19th day of July, 2021 in Criminal Session Case No. 25 of 2019 JUDGMENT OF THE COURT 11th & 13th March, 2025 MWAMPASHI. J.A.: This is an appeal against the conviction and sentence of death passed on the appellants by the Resident Magistrates' Court of Bukoba at Ngara (Ndale, SRM-Ext. Juris) (the trial court) in Criminal Session Case No. 25 of 2019. Before the trial court, the appellants were charged and convicted of the murder of David s/o Mbilahisha (the deceased) on 29.01.2017 at Rulenge Village within the District of Ngara in Bukoba Region. After a full trial, the trial court found it proved beyond reasonable doubt that the deceased was murdered by the appellants and as we have alluded to above, the appellants were duly convicted and sentenced to suffer death by hanging. Aggrieved, the appellants have preferred the instant appeal. From the nature of the ground raised in support of the appeal and the manner the appeal is going to be determined, the factual background of the case will not be necessary. However, it suffices to note that on 29.01.2017 at around 01:00 hours, the deceased who was asleep in his house with his sons including Deus David (PW3), was attacked and murdered by robbers. According to PW3, he managed to identify the attackers as the house was well lit by solar powered bulbs and also because they were his neighbours hence, he knew them. To PW3 the attackers who murdered the deceased were the appellants. After the attackers had fled, PW3 reported the incident and named the appellants to his neighbour Florence Marcel (PW4). In the morning, the appellants were arrested by F. 5858 D/Cpl. Athumani (PW2) at the deceased house amongst mourners who had turned at the funeral of the deceased. In their respective defences, the appellants denied being involved in any way in the death of the deceased. They however, admitted that they were arrested at the funeral where they had gone to mourn the death of the deceased who was their village mate. When the appeal was called on before us for hearing, Mr. Samwel Angelo, learned advocate, who appeared for the appellant, abandoned the substantive memorandum of appeal which had earlier been filed by the appellant on 29.09.2023. In substitution of the abandoned memorandum of appeal, Mr. Angelo had on 05.11.2025 lodged a supplementary memorandum of appeal comprised of a single ground to wit; 1. That the High Court erred in law to transfer the case under section 45 (2) o f the Magistrates' Court Act to the presiding Resident Magistrate with Extended Jurisdiction. Submitting in support of the ground of appeal, Mr. Angelo took us to pages 28 and 35 of the record of appeal where it is shown that the case file was firstly transferred from the High Court to Hon. Luambano (RM-Ext. Juris) before it was re-assigned to Hon. Ndale (SRM- Ext. Juris). He pointed out that in both two instances, the transfer was erroneously predicated upon section 45 (2) of the Magistrates' Court Act [CAP. 11 R.E. 2019] (the MCA) which apply to transfers of appeals and 3 not criminal cases for plea taking and trial. It was further contended by Mr. Angelo that, the transfer ought to have been done under section 256A (1) of the Criminal Procedure Act [CAP. 20 R.E. 2022] (the CPA) which caters for transfer of criminal cases which ordinarily, are triable by the High Court to Resident Magistrates with extended jurisdiction for plea taking and trial. On account of the above pointed out irregularity, Mr. Angelo contended that Hon. Ndale (SRM- Ext, Juris) who presided over Criminal Session Case No. 25 of 2019 was not clothed with jurisdiction to try the case. He thus, prayed for the trial proceedings and the resultant judgment and orders to be nullified. As on what should be the way forward, Mr. Angelo implored on us not to return the case file to the High Court for retrial but to release the appellants. He argued that the available evidence as it can be observed from the evidence on record is insufficient. Mr. Angelo insisted that the identification evidence by PW3 on which the prosecution based its case against the appellant is not watertight. He thus, prayed for the appeal to be allowed by releasing the appellants. On the other hand, Ms. Ajuaye Bilishanga, learned Principal State Attorney, who was assisted by Ms. Chema Maswi, learned Senior State Attorney and Mr. Dickson Makoro, learned State Attorney, in representing the respondent Republic, was in agreement with Mr. Angelo that, Criminal Session Case No. 25 of 2019 was wrongly transferred from the High Court to Hon. Ndale (SRM- Ext. Juris) under section 45 (2) of the MCA instead of section 256A (1) of the CPA. She argued that Hon. Ndale (SRM- Ext. Juris) had no jurisdiction to try the case. However, Ms. Bilishanga differed with Mr. Angelo on what should be the way forward. While she agreed that the trial proceedings are a nullity, she was of the view that, under the circumstances of this case, a retrial has to be ordered. Ms. Bilishanga contended further that, the identification evidence by PW3 which was by recognition is watertight. She insisted that, in general, there is sufficient evidence to support the conviction. In his brief rejoinder, Mr. Angelo reiterated his prayer for the case file not to be returned to the High Court for retrial but for the appellants to be set at liberty. He insisted that PW3's identification evidence is doubtful and not watertight. We find it apt to preface the determination of the appeal by reproducing the relevant law beginning with sections 45 (2) of the MCA under which it is provided that: "The High Court may direct that an appeal instituted in the High Court be transferred to and heard by a resident magistrate upon whom extended jurisdiction has been conferred by section 45 (1)". Section 256A (1) of the CPA, stipulates that: "The High Court may direct that the taking o f a piea and the trial o f an accused person committed for trial by the High Court, be transferred to, and be conducted by a resident magistrate upon whom extended jurisdiction has been granted under subsection (1) o f section 173" It is clear from the above cited provisions of the law that, whereas under section 45 (2) of the MCA, appeals that are ordinarily heard by the High Court may be transferred to Resident Magistrates with extended jurisdiction for hearing and determination, thetransfer envisaged under section 256A (1) of the CPA is in regard to cases triable by the High Court which involve plea taking and trial. See- Abdallah Ramadhani @ Sindano v. Republic (Criminal Appeal No. 184 of 2022) [2024] TZCA 816 (22 August 2024;TanzLII). It is thus, crystal clear that while the transfer under section 45 (2) of the MCA confers jurisdiction to Resident Magistrates with extended jurisdiction to hear and determine appeals which ordinarily are heard by the High Court, the transfer under section 256A (1) of the CPA confers such magistrates with jurisdiction to take plea and try criminal cases which ordinarily are triable by the High Court. According to the record of appeal at page 28, Criminal Session Case No. 25 of 2019 from which the instant appeal arises, was initially transferred by the High Court to Hon. Luambano (RM-Ext. Jurs) for plea taking and trial purportedly under section 45 (2) of the MCA. Hon. Luambano took the appellants' plea and conducted a preliminary hearing. For reasons not in record and again acting under section 45 (2) of the MCA, on 05.07.2021, the Judge in Charge re-assigned the case to Hon. Ndale (SRM-Ext. Juris) who tried the case to its finality. The said transfer order as reflected at page 35 of the record of appeal reads as follows: "Date: 5/7/2021 Coram: Hon. Dr. N.N. Kilekamajenga, J Parties: Absent COURT: Pursuant to the provision o f Section 45 (2) o f the Magistrate Court Act Cap 11 R.E2002. I hereby Re- Assigned this Criminal Session No. 25 o f 2019 to be heard and determined by Hon. Flora B. Nda/e (SRM-ESQ) with extendedjurisdiction. It is so ordered. N.N. Kilekamajenga JUDGE IN CHARGE 5/7/2021 In view of the above, and as rightly argued by both counsel, the transfer of Criminal Session Case No. 25 of 2019 to Hon. Ndale (SRM- Ext. Juris) who tried the case to its finality was faulty. The transfer was done under section 45 (2) of the MCA instead of section 256A (1) of the CPA. As we have amply showed above, section 45 (2) of the MCA applies to transfer of appeals and not criminal cases triable by the High Court. That being the case, Criminal Session Case No. 25 of 2019 being not an appeal, its transfer was thus, faulty and it did not confer Hon. Ndale (SRM-Ext. Juris) with jurisdiction to preside over it. Thus, Hon. Ndale (SRM-Ext. Juris) tried the case without jurisdiction. In our recent decision in the case of Johanes Sililo @ Kamihanda & 4 Others v. Republic (Criminal Appeal No. 325 of 2022) [2024] TZCA 1170 (2 December 2024;TanzLII) where we were faced with a similar scenario, it was stated that: "7/7 view o f the stated position o f the law, in the present case the transfer predicated under section 45(2) o f the MCA did not confer jurisdiction on the RM to determine the matter at hand and as such; the RM with extended jurisdiction embarked on a nullity to try the criminal case which is subject o f this appeal. In the circumstance, given the fatal omission in the transfer orders, none o f the two magistrates with extended jurisdiction was clothed with jurisdiction to preside over the plea taking or the trial. In a nutshell\ there was no transfer whatsoever o f the case file from the High Court to any o f the Resident Magistrate with extended jurisdiction". In the instant case, as we have amply demonstrated above, the transfer of Criminal Session Case No. 25 of 2019 from the High Court to Hon. Ndale (SRM- Ext. Juris) was faulty and the trial magistratehad no jurisdiction to preside over the case. That being the case,theentire proceedings including the resultant judgment and orders are a nullity. On what should be the way forward after nullifying the proceedings, judgment and orders of Criminal Session Case No. 25 of 2019, Mr. Angelo and Ms. Bilishanga parted ways. While to Mr. Angelo there should be no retrial of the case but the appellants have to be released because there is no sufficient evidence capable of supporting the conviction, to Ms. Bilishanga the case has to be retried because there is enough evidence to support the conviction. On account of the two varying arguments, the imminent issue before us is whether the circumstances of the case warrant a retrial or not. We have considered the circumstances of the case as a whole. We are also mindful of what was stated by the defunct East African Court of Appeal in the case of Fatehali Manji v. Republic [1966] E.A. 343, that retrial will be ordered only when the original trial was illegal or defective, that each case must depend on its own fact and circumstances and further that retrial should only be made where the interests of justice so require. In that view and for the interests of justice we find it appropriate and justiciable that Criminal Session Case No. 25 of 2019 has to be returned to the High Court for retrial. All said and done, we allow the appeal to the extent that the proceedings and the resultant judgment and orders by Hon. Ndale (SRM- Ext. Juris) in Criminal Session Case No. 25 of 2019 are declared a nullity and are accordingly nullified. We also order that the case should be remitted to the High Court for retrial. For interests of justice, we further direct that the case be retried expeditiously by a High Court Judge. Meanwhile, the appellants have to remain in custody awaiting the retrial of the case by the High Court. DATED at BUKOBA this 13th day of March, 2025 S. E. A. MUGASHA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 13th day of March, 2025 in presence of Mr. Samwel Angelo, learned counsel for the Appellant and Mr. Dickson Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.