20010729 TZHC Mwanza

IN THE HIGH COURT OF 'I1ANZANIA ---.:·•--- AT MvJANZA (PC) CRIMINAL IIFPEAL NOo 3 0F 2000 (From the decisi0n nf the District Cnurt nf Tarime at Ta.rime in Crimi.~ Appeal Nn. 8 0f 1999) , Versus RHOBI ~An1A, CHACHA · ••••••• .'.-~ ~ ••••••••••••••••••••••••••• ~ ~ ••••• RESPCND:fl'T JUDGMENT This is a simple appeal which has been levelled primarily on aec~'I.Ult of what is alleged tt:'I be a procedural err"r which the appellate Distriot Magistrate at Tarim~ c0mnitted when he quashed the cnnvictinn ('If the accuoedj respondent one Rhob~ Magaiwa Chacha and discharged her withl"ut an order for retrial for reasr,n that the accused did n0t know Kiswahili,• ~d that M inte.rpreter was empl0yed or used t~ interpret tf' the accused during the trial eourt 1 s proceedings. The accused alleged in her t:munds of appeeal,. that she does wt knriw Kiswahili but kn0ws nnly Kikurya_ language• As a reetil:; ' she did n"t underistand the charge which was read over tn her in Kiswahil~t and her plea of guilty to·the charge was nl"t tmequiv<'cal. The accused/resp~ndent had been charged bef0re Nyamwaga primary C(\u,i with the l'.lffence nf receiving st0len pr0perty e/s 311 (1) Penal Code. !he was ennvicted thereby 0n her nwn plea nf guilty, and was sentence? to 5 year; imprisnnrnent. She appealed t0 the District Court in which she enmplain~d that she had nnt understood the charge·that Waf3 read ~ver u, her in Kiswai.u at the trial, such that her plea of guilty was lll"t real f'.lr true. The learned a,ppellate District Magistrate believed this gr0und 1 and thereby · q~hed the conviction and set a.sic.~ the cust0dial, :,iet1tence, and .-d:i.sehargod the accused/appellant withnut nrderi~ a retri~. r - 2 ... 'l'he eomplaina.nt, hence the Republic, has been aggrieved by the order or defliSi('ln of the appellate District Magistrate. Mr. Bulashi, learned state Attorney who appeared for the DPP in this appeal argued that th~ learned appellate District Magistrate erred in law in n0t making an nrcte, that the case be retried, and that an inte!"!Jrcto:r- be used in the retria$, to inter-pret the proceedings to the accused. I have examined the reci,rd "f the trial primary c0urt. I have n~ted that there was ?l() interpreter used in those prcceedings. But alsn there is n('lthing 0n recqrd tc, shflw that tne accusec1 had informed the tri~ Qf'I~ . . l· that she did not know Kiswahili hrt knew Kikurya language ~nJ.y. s~, tht accused• s ground that she did rn,t understand Kiswahili is a mere asee:rti- wbieh is n0t proved. However, ram of the c0nsidered view that in criminal, cases where an issue.like this 0ne arises, and there is no evidence t~ decide it either wa:y,1 then the benefit of d"ubt sh0uld be acc~rded te, t!,te accused• so, I find that the appellate Distriot Magistrate wa.e · right in believing that the accused did Il0t kn~w Kiswahili and that hq plea ~f guilty which was ~btained after_the charge was read tn her in Kiswahili was not real, hence the same was equivocal. Also I have ('lnserved in the trial c0urt recrrd that after the accused•t plea of guilty was rec0rded, nc facts r-f the case were adduced, and the accu~ed was oot asked whether or nnt she accepted those faets, Thi~ was a seri~us and fatal 0rrd.ssi0n which the trial primary c~urt c~mmitted 1 the same rendered the pr('lceedings bef0re it null and void, as the a..i,.sed w~ adversely prejudiced by that l"!m.i.ssi0n. S<1, the learned appellate nistriet Magistrate wa.s right in law in quashing the convieti('ln and seitpg aside the.sentence that the trial primary c0urt had passed and imp('lsed t\l, the accused. However, ram "f the considered ~ew that the aecused ~ not thereby pIY'>ved n~t t0 have c0mnitted the ('lffence with whieh she was chargeq. I therefr-re agree with Mr> Bulashi, learned State Att~rney -- 3 - that justice still requires that the accused/respondent be pr~perly prosecuted for the r.ffence• :tt is tnr this only 'reason that I quash 'ihe decision and order. ,nf -the appellate District Cr-urt which directed the release r-f the accus_ed -frrim prison wi thnut being retried. I nrdei- that the named accuse.d 'be ·:arresterl and tried again_ 0n the same nffence with which she was ini tJall.y i charged be.:f"re Nyamwaga Primary C0urt,. . '" . . . I nrder that at the·t~al de n0v0 an interpreter be used tr" interp:.et the proceedings m the acc~i:;~d ii-om Kiswahili to Kikurya -ra'. any ;the:.. language which she understands and vice· ,:,'·.~:-:.3ae I order acc('\rdingq. To this extent the· appeal is allowed,. - Appeal allnwed• ; .' ; .· . -~-· ..,... ·'-•·"-~ -~- AT MwANU 29/7/2001 -JUDGE ,,_. ,.,··