Salum Mohamed Karuhona

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 15297 OF 2024 (originating from Economic Case No.8 of 202 in the District Court of Morogoro at Morogoro) SALUM MOHAMED KARUHONA APPELLANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order;29.07.2024 Date of Judgement: 31.07.2024 JUDGEMENT MAGOIGA, J. The appellant, SALUM MOHAMED KARUHONA aggrieved with the decision of Morogoro District Court (the trial Court) in Economic Case No.08 of 2023 appealed to this court armed with 5 grounds of appeal but for the reasons shortly to be apparent in this judgement will not produce them herein. When this appeal was called on for hearing, the appellant appeared in person under custody and unrepresented ready for hearing; and the respondent. Republic was represented by Mr. John Mkonyi, learned State Attorney. This court having noted the incompetency of the consent and certificate issued by the Regional Prosecution Officer before the hearing of the Economic case in the trial court invited the learned State Attorney, this being a point of law, to address this court if the said consent and certificate were properly issued and the way forward. Mr. Mkonyi readily conceded that, indeed, the consent to prosecute the economic case and the certificate conferring the jurisdiction to the trial court issued by the Morogoro Regional Prosecutions Officer were incurably defective and rendered the whole trial and judgement of the trial court null and void for failure to cite the provisions which created the offence which the appellant stood charged before the trial court. In support of the position, the learned Attorney cited the case of Peter Kingoli Maliwa and 4 others Vs. Republic. Criminal Appeal No. 253 of 2020 CAT (Musoma) on Tanzlii and Hassan Nassoro @ Almasi Vs. DPP, Criminal Appeal No. 312 of 2019 CAT (Sumbawanga) on Tanzlii which decisions, the highest Court of the land, was loud and clear that where consent and certificate allowing trial and conferring jurisdiction to subordinate court try the case do not contain sections which created the offence in dispute, renders the whole trial null and void and the resultant proceedings and judgement incompetent for emanating from court without jurisdiction. In the circumstances, the learned Attorney was quick to implore this court to nullify the proceedings and judgement of the trial court and order retrial. Further guided by the same decision, Mr. Mkonyi argued that it is only when the evidence is wanting and for avoidance of fiiling the gaps that the Court can set the appeilant free. In the circumstances of this appeal, however, the learned Attorney pointed out that the evidence on record is ample and no fear of filling gaps and urged this court to order retrial after nullifying the trial court proceedings and quash judgement and sentence meted out against the appeilant. The appellant being a layman had nothing useful to reply save that he prayed that this court allow the appeal and set him free. Indeed, as rightly noted by this court and rightly conceded by the learned State Attorney, no dispute that the certificate conferring jurisdiction to trial court and the consent to prosecute the instant economic case before subordinate court were conspicuously and incurably defective for failure to cite the provisions which created the offence the accused was charged. Consequently, as guided by the case of Peter Kingoli Maliwa and 4 others Vs. Republic (supra) the above omission, rendered the whole trial a nullity because was conducted without proper jurisdiction. Without much ado, the instant appeal suffers the same fate. On the foregoing reasons, I hereby under the provisions of section 43(l)(a) of the Magistrate Court's Act, [Cap 11 R.E.2022] doth hereby exercise my revisional powers and nullify the entire proceedings and set aside conviction and quash the judgement in the Economic Case No. 1 of 2022 and set aside the sentence meted out against the appellant. Next is the way forward, Mr. Mkonyi prayed and urged this court to order retrial of the accused person because there is ample evidence on record and no filling of gaps by prosecutions. The appellant on the other hand prayed that this court be pleased to set him free. I have had time to go through the record, and I did not find anywhere the prosecution will fill in gaps. I have equally considered the evidence on record, and if things remain the same, I found there is evidence to establish prima facie case. That said and done, I am constrained to order the retrial of the accused person in the Morogoro District Court before another magistrate competent to try the case. The retrial be expediated upon the Republic filing a proper certificate and consent without fail. Order accordingly. Dated at Morogqr0fthi5^,P^ day of J Ul 024 r~) '/uj/ JUDGE 31/07/2024 COURT: Judgement delivered in chambers in the presence of the appellant and Ms. Diana Aloyce, learned State Attorney for the Respondent at Morogoro today 31®^ dayjif July, 2024 r-/ M I?, S.M/MAGOIGA V. /; ; JUDGE 31/07/2024 COURT: Right of appeal fully explai S.I JUDGE 31/07/2024