20150930 TZHC Dar es Salaam

_, _,,.,_ - ·,: ·1' IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM HC CRIMINAL APPEAL NO. 78 OF 2015 (Appeal from the decision of the Ilala District Court in Criminal Case No. 82 of 2002) SAIDI OMARY KIOMBWE @ KIPIANO .......................... APPELLANT Versus THE RE PU Bl.IC. ···•·••·•·••·········· ■■ I.~ ■■■■■■■■■■■• ■•■~ •••••••••••••••••• RESPONDENT Date of last order: 24th August, 2015 Date of Judgment: 30th September, 2015 JUDGMENT Feleshi, l.: Before the Ilala District Court, the appellant was charged together with five other accused persons with the offence of Armed Robbery; contrary to sections 285 and 286 of the Penal Code, Cap. 16 R.E.2002. Only the appellant was held liable. He was consequently, convicted and sentenced to fifteen years (15) years imprisonment. He has challenged the decision of the trial court and raised six grounds of appeal. In his first ground of appeal, the appellant states that the trial magistrate erred in law and fact and misdirected himself when he proceeded with the trial in the absence of the appellant contrary to the 1 · ( procedures of law. That his absence was from causes beyond his control as he was in Keko Prison as a remandee and could not put appearance without there being summons issued to cause his appearance. A right to appear and take part in judicial proceedings is fundamental and is well protected by the law as it is a key ingredient to fair trial. In Mussa Mwaikunda v. Rep. [2006] TLR 387 the Court of Appeal categorically restated the standard of fair trial being right: to understand the nature of the charge; to plead to the charge and to exercise the right to challenge it; to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the Offence charged; to follow the course of the proceedings; to understand the substantial effect of any evidence that may be given in support of the prosecution; and to make a defence or to answer the charge. It finally held that violations to those standards had effect of vitiating the proceedings of the trial court (see also: Cheko Yahya v. Rep., Cr. Appeal No. 179 of 2013 (CAT) Tabora Registry-Unreported), Bizabigomba S/0 Tiyeri v. Rep., HC Cr.Appeal No. 47 of 2006 and Daud S/0 Seleman Kaptula @ Salehe v Rep., HC Cr.Appeal No. 87 of 2014-Tabora Registry- unreported). In the present case there is no dispute that the accused who is an appellant before this court did not take part in the substantial part of the trial proceedings. The trial Court did not even consider his defence. In the case of Christine Kale and another v. Rep. [1992] TLR 302 it was held that an accused ought not to be convicted on the weakness of his defence but on the strength of the prosecutions' case. In any case, the trial magistrate 2 Ji '·i was duty bound to consider the evidence as a whole and reflect to have done ·so in his judgment. This was not the case in the challenged decision. In view of the foregoing analysis, I accordingly nullify the trial court's proceedings, quash the conviction and set aside the sentence imposed against the appellant. The appellant is to be released from custody forthwith unless if he is otherwise lawfully held. The prosecution is at liberty to re-institute fresh proceedings against him. DATED at DAR ES SALAAM this 30th day of September, 2015. E. .FELESHI JUDGE Delivered in the presence of Mr. Frank Tawale, th Attorneys, for the Respondent and the Appellant in person. Right of Appeal is l explained. .FELESHI JUDGE 30/9/2015 3