CRM

IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA (CORAM: KOROSSO. 3.A.. KENTE. J.A. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 619 OF 2021 SALEHE SIMUCHIMBA................................................................. APPELLANT

VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Nqunvale, J) Dated the 8th day of November, 2021 in Criminal Appeal No. 87 of 2021

JUDGMENT OF THE COURT 18th & 27th February, 2025 KENTE. 3.A.: The appellant, Salehe Simuchimba, appeared before the District Court of Ileje at Itumba on a charge of rape of a fourteen years old girl, contrary to section 130(e) and 131(1) of the Penal Code, Cap 16, R.E 2002. It is on the record that, after the charge was read over and explained to him, he pleaded guilty. Consequently, he was convicted on his own plea of guilty and sentenced to the statutory sentence of thirty (30) years' imprisonment. Moreover, the appellant was ordered by the i trial court to pay compensation to the victim of his alleged wrongdoings to the tune of TZS.l,000,000.00. Although the appellant had been convicted on his own plea of guilty, he appealed to the High Court of Tanzania (sitting at Mbeya) in DC Criminal Appeal No. 2015 to challenge the conviction, sentence and compensation order. It is worthwhile to note at this juncture that, going by the record of appeal, during the hearing of the appeal before the High Court, the learned State Attorney who represented the respondent, Republic, supported the appellant's appeal on two grounds; One, that the trial magistrate failed to comply with section 228(2) of the Criminal Procedure Act, Cap 20, R.E 2002 (the CPA), in that he failed to take note of the material defects in the appellant's plea which was not consistent with the facts narrated by the

prosecutor, and Two, that the charge was defective for citing a nonexistent provision of the law that is, citing section 130(e) of the Penal Code instead of 130(l)(2)(e). Accordingly, the learned State Attorney prayed for the High Court to nullify the proceedings of the trial court, quash the conviction and set aside the sentence imposed on the appellant. On the course to follow, the learned State Attorney implored the learned High Court Judge to remit the matter to the District Court for a re-trial to be conducted. For his part, the appellant, being 2 unrepresented and a layperson, did not have much to add. He simply agreed with the arguments presented by the learned State Attorney. Having considered the submissions made by the learned State Attorney, the learned High Court Judge was convinced that indeed, the appellants' pleas of guilty was marred by some material irregularities and that he was charged under a non-existent provision of the law. He therefore went on to nullify the proceedings of the trial court, quash the conviction and set aside the sentence imposed on the appellant. In the circumstances, the learned Judge was convinced that an order for retrial would be appropriate. Accordingly, by the order dated 19th April 2016, having quashed the appellant's conviction by the trial court and set aside the sentence meted out on him, the High Court Judge directed that,

the case file be remitted to the trial court for a retrial which was to be conducted by another magistrate of competent jurisdiction. However, it appears from the record that, when the matter was remitted to the District Court of Ileje for retrial, the prosecution filed a fresh case which was however founded on the same facts. According to the record of appeal, a fresh charge sheet was admitted in court on 17th June 2016 and registered as having initiated Criminal Case No. 17 of 2016. 3 For the reasons that will soon become apparent, we will not delve into the evidence that was led in support and opposition of the prosecution case. All we need to say is that, the appellant denied the charge upon which the matter proceeded to trial, at the end of which, he was convicted as charged and sentenced to the mandatory custodial sentence of thirty years' imprisonment. His appeal to the High Court failed to yield fruits hence the present appeal. At the hearing of the present appeal, the appellant appeared in person, while Mr. Joseph Mwakasege, learned State Attorney entered appearance for the respondent, the Republic. Before considering the complaints raised by the appellant in the memorandum of appeal, we asked the learned State Attorney and the appellant to address us on the trial court's compliance or otherwise with the order of the High Court (Mambi, J) dated 19th April 2016 in DC

Criminal Appeal No. 55 of 2015 by which the learned High Court Judge, after having nullified the proceedings of the trial court in Criminal Case No. 13 of 2015 and quashed and set aside the appellant's conviction and sentence, he ordered a retrial. Having made up his mind there and then, Mr. Mwakasege readily conceded the fact that the order for retrial was not complied with. That the learned Judge had specifically ordered a retrial by another competent magistrate but that order, was not complied with. Instead, after the matter was remitted to the trial court, a new charge alleging the same particulars of offence was presented and the case was registered as Criminal Case No. 17 of 2016. Mr. Mwakasege submitted that this was clearly unprocedural and a misdirection. On the course to take, he implored us to nullify the proceedings in Criminal Case No. 17 of 2016 before the trial court and its subsequent appeal to the High Court (Criminal Appeal No. 87 of 2021), quash the appellant's conviction and set aside the sentence imposed on him. Ultimately, he prayed for this court to order the file to be remitted back to the District Court of Ileje for compliance with the order for retrial. Since the appellant has been in prison for the last ten years, the learned Senior State Attorney prayed the Court to consider the period he has spent in custody and make an appropriate order. For his

part, the appellant had nothing substantial to add to Mr. Mwakasege's submission. He only urged us to take into account the ten years' period he has been in jail and have mercy on him. Now, as correctly submitted by Mr. Mwakasege it is apparent from the record of appeal that, the order made by the High Court Judge in Criminal Appeal No. 13 of 2015 was not complied with. In this regard, we 5 propose to commence our discussion by revisiting the concept of a retrial as per the relevant case law. In Adjane Abubakar vs Republic (Criminal Application No. 40 of 2021) [2023] TZCA 17457 (26 July 2023), we defined the term "retrial" to mean and actually entail that, the matter should be heard afresh as if no hearing at all had been made in respect thereof. We went further to refer to the following statement by the Supreme Court of Nigeria in its persuasive decision in the case of Kajubo v. State (1988) LPELR-1646 (SC), thus: "An order for a retrial or a new trial or trial de novo or venire de novo is an Order that the whole case should be tried de novo or tried anew as if no trial whatsoever had been had in the first instance" Obviously, an appellate court has the mandate to order a retrial of any case by a court of competent jurisdiction subordinate to such appellate court in the deserving circumstances. In our jurisdiction, the power to order retrial is envisaged under section 388 of

the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA) which provides that; 388. -(1) Subject to the pro visions o fsection 387, " no finding sentence or order made or passed by a court o f competentjurisdiction shall be reversed 6 or altered on appeal or revision on account o f any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or in any inquiry or other proceedings under this Act; save that where on appeal or re vision, the court is satisfied that such error, omission or irregularity has in fact occasioned a failure o fjustice, the court may order a retrial or make such other order as it may considerjust and equitable." As a matter of law and on this, we need not cite any authority in support of this elementary principle of law that, an order for retrial stamps out from the record the earlier proceeding and makes subject and exposes the person accused to another trial. Moreover, when a higher court makes an order for retrial or trial de novo, as it happened in the instant case, there is no gainsaying that the said order is directed to the trial court and not the parties. It is therefore important to note that, where a retrial is justified, trial does not relate to the commencement of an action. Put in other words, the originating processes which were not affected by the detected defects, subsist and

survive an order for retrial. These include, as in our present case, the charge sheet which was previously filed in the District Court in Criminal Case No. 13 of 2015. 7 Conning to the instant case, what we have gathered from the record and what has been submitted by the learned Senior State Attorney is that, upon the order by the High Court Judge which was self-explanatory as to require no interpolations, the trial magistrate committed an irregularity and impropriety for allowing a fresh case, i.e. Criminal Case No. 17 of 2016, to be opened instead of proceeding with Criminal Case No. 13 of 2015 which, as the matters stand, is hitherto still pending trial before the trial court. In this connection, we wish to observe that the order of the High Court for a retrial did not connote the charging of the appellant afresh in a new case file with a different case number. On this case we are fortified by the persuasive decision of the Indian Supreme Court in the case of Ajay Kumar Ghoshal etc. vs. State of Bihar & ANR. [Criminal Appeal Nos. 119-122 Of 2017] where it was stated that: "A 'de novo trial’ or retrial is not the second trial; it is a continuation o f the same trial and same prosecution. The guiding factor for retrial must always be demand o fjustice." From the foregoing discourse, we are satisfied that the procedure adopted by the District Court to open a fresh charge

against the appellant was irregular. The proper cause the District Court was required to take was to commence the proceedings by reading or causing the charge 8 already contained in Criminal Case No. 13 of 2015, to be read over to the appellant who was then the accused person, take his plea and, in the event of a plea of not guilty being entered, to call upon the prosecution to lead evidence in support of their case as well and receive the appellant's defence. The trial that ensued without complying with the High Court order, was clearly a misdirection and it cannot be allowed to stand. In the circumstances, invoke our powers under section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws and nullify the proceedings of the trial court, quash the appellant's conviction and set aside the custodial sentence imposed on him. Since the proceedings and judgment of the High Court in Criminal Appeal No. 87 of 2021 emanated from a nullity judgment of the trial court, we equally and respectively quash and set them aside. In the end, in view of the unfortunate circumstances obtaining this case, and in the interests of justice, we have no other option than to order that as we hereby do, the appellant be placed before the District Court of Ileje for a retrial of Criminal Case No. 13 of 2015 pursuant to the order of High Court in DC Criminal Appeal No. 55 of 2015. We

further direct that this matter be handled expeditiously taking into account that the charge 9 against the appellant relates to an offence which was allegedly committed in 2015. In case of a conviction, the time the appellant has spent in prison should be taken into consideration by the sentencing court. Meanwhile, the appellant shall remain under custody awaiting a retrial. DATED at MBEYA this 27th day of February 2025. W. B. KOROSSO

JUSTICE OF APPEAL P. M. KENTE

JUSTICE OF APPEAL L. E. MGONYA

JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2025 in the presence of appellant in person and Mr. Rajabu Msemo, learned State Attorney for the Respondent/Republic through virtual court, is hereby certified as a true copy of the original. W. A. HAMZA

DEPUTY REGISTRAR

COURT OF APPEAL