robert so madololyo another vs republic 2020 tzca 1909 17 december 2020

robert so madololyo another vs republic 2020 tzca 1909 17 december 2020

The omission to cite section 130(1) and (2)(a) of the Penal Code in the charge rendered it fatally defective, depriving the appellants of a fair trial, and the defect could not be cured under section 388 of the Criminal Procedure Act. The proceedings and judgments below were nullities.

Citation
robert so madololyo another vs republic 2020 tzca 1909 17 december 2020
Parties
Appellant: Robert s/o Madololyo; Appellant: Masunga Dudu @ Mlekwa; Respondent: The Republic
Court
TZCA
Jurisdiction
Tanzania
Judgment Date
17 December 2020
Procedural Posture
Criminal Appeal / Second Appeal (court of Appeal)
Outcome
appeal allowed
Legal Topics
Defective Charge, Gang Rape, Rape, Fair Trial, Criminal Procedure
Source Language
English
Criminal Law Defective Charge Gang Rape Rape Fair Trial Criminal Procedure

Case Brief

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Parties

Robert s/o Madololyo

Appellant

Masunga Dudu @ Mlekwa

Appellant

The Republic

Respondent

Procedural Posture

Criminal Appeal / Second Appeal (court of Appeal)

Legal Issues

  1. 1 Whether the charge sheet was fatally defective for failure to cite the substantive provision creating the offence of rape and for lacking essential particulars of gang rape
  2. 2 Whether the omission deprived the appellants of a fair trial

Ratio Decidendi

The omission to cite section 130(1) and (2)(a) of the Penal Code in the charge rendered it fatally defective, depriving the appellants of a fair trial, and the defect could not be cured under section 388 of the Criminal Procedure Act. The proceedings and judgments below were nullities.

Court Disposition

appeal allowed

Orders

  • Proceedings and judgments of the District Court and High Court nullified
  • Convictions quashed