20170906 TZHC Dar es Salaam 1

l IN THE HIGH COURT OF TANZANIA ------(DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CRIMINAL APPLICATION NO. 84 OF 2017 {Originating from Kilombero -lfakara District Court in Criminal Case No.163 of 1999) SALUM s/o KASSIM LIKOMBA ..................... APPLICANT ·vERSUS THE REPUBLIC ............................................. RESPONDENT RULING Date of Ruling offh September 2017 SAMEJI, K. R. l This Misc. Criminal Application No. 84 of 2017 filed by Salum Kassim Likomba involves a traumatic experience. The applicant was charged for the offence of robbery with violence contrary to section 285 and 286 of the Penal Code, [Cap 16 R.E. 2002] before -Kilombero District Court in Criminal Case No. 163 of 1999, where on 21 st July 2000 he was convicted and sentenced to fifteen (15) years imprisonment. Aggrieved with both conviction and sentence, the applicant immediately expressed his desire to appeal and indeed he was able to lodge his notice of intention to appeal within time, while still waiting for t e necessary Misc. Criminal Application No. 84 of 2017 1 documents including a copy of judgement and proceedings to process his appeal, but without success. In 2004 he was transferred to Ukonga Prison where he as well continued to make a follow-up without success. He wrote a letter to the Human Rights Commission lodging his complains on the non availability of the copies of Judgement and proceedings to pursue his appeal. He finally received the documents and filed his appeal, but it was dismissed for being time barred. He was then assisted to file Misc. Criminal ) Application No. 15 of 2017praying for the extension of time to be allowed to file his appeal out of time, but it was not granted because the Hon. Judge returned the file to the subordinate court to obtain the copies of Judgement and Proceedings. He has waited for almost nine (9) years now but without success. He then wrote a letter to the Court Registrar requesting on how he will be able to exercise his right of appeal. In February 2017 the Registrar wrote a letter to him informing that, the trial court's file is missing and cannot be traced. In such a position the applicant had no alternative but to file this Application praying this Court to issue directives on how he will exercise and pursue his right of appeal without a copy of judgement and proceedings from the trial court. Misc. Criminal Application No. 84 of 2017 ~KS.me/ti 2 •' At the hearfrig-of 11iis-·Api::mcation- the-applieant- appeared-in- persoo _and _________ _ unrepresented while Ms. Ellen Masului, the leaned State Attorney appeared for the respondent, the Republic. In his submission before this Court the applicant narrated on how he was charged, convicted and sentenced for an offence he never committed and later on the trial court failed to supply. him with a copy of judgement and proceeding, hence denied him of his chance to appeal. He complained that he has been in prison for more than fifteen (15) years now. He further complained that, it is the duty of the trial court which convicted and sentenced him to provide him with the copies of judgement and proceedings to enable him exercise his rights of appeal, but his case file and all documents vanished mysteriously while in the hands of the trial court and now he is languishing in jail without any help. He prayed this court to intervene and order for his immediate release. In response, Ms. Masului conceded to the fact that the applicant's Criminal Case file No. 163 of 1999 has been lost or misplaced and all efforts to trace the record has failed. That, since his conviction and sentence on 21 st July 2000 the applicant has been fighting to be availed with copies of judgement and proceedings for appeal purposes. Ms. M . ului intimated Misc. Criminal Application No. 84 of 2017 3 that since the case file has vanished while in the custody of the trial court_ and since it was the duty of the trial court to furnish the applicant with the required copies, then justice must be done to the applicant because he is not responsible for the missing of the case file. His right to appeal has been blocked by the disappearance of the case file. Ms. Masului concluded that in such circumstance the Court should interfere with necessary orders which will do justice to the applicant. She therefore left the matter into the hands of the Court to decide. It is worth noting that, this is not the first time this Court is confronted with an application of this nature. The issue of disappearance of courts' files has become a serious and frustrating impediment to dispensation of justice. In a bid to cure this malady, the courts have devised various mechanisms and these include: One, the issuance of orders of retrial, Two issuance of orders for the reconstruction of the lost file and Three an automatic acquittal. In the case of Wainaina v Republic (2004) 2 EA 349 CAK where after conviction and sentence of the accused both trial court file and prosecution file got lost and it was impossible for the appellant to process his appeal. The Court of Appeal held that:- Misc. Criminal Application No. 84 of 2017 4 '' When court and /or police file are missing, the court must try to hold scales ofJustice and must consider all the circumstances under which the loss has occurred The paramount consideration must be whether the order proposed to be made is the one that best serves the interest ofJustice' I entirely agree with the principle enunciated in this case. First of all it must be appreciated that, the applicant's right to appeal is statutory and a constitutional right. Having been convicted and sentenced by the trial court, the applicant's matter was not final and conclusive because he had a chance of appeal of which he was adamant and serious to exercise. (See the Affidavit of the applicant is support of this Application). The applicant's fundamental right to appeal has been curtailed by the disappearance of the case file. He was deprived a chance to challenge the conviction and sentence imposed against him. Secondly, there is no scintilla of evidence to suggest any connection between the applicant and the disappearance of the court's file. Thus, his constitutional right to appeal has simply been blocked by the negligence of the trial court which failed to avail and secure the court's file. As a result the applicant's right to be heard on appeal has been denied. In the circumstance the question before me is whether the Mi"sc. Crimi~! Application No, 84 of 2017 5 . .ltK. Somejl,J --1111- appellant should be left in prison to complete his long term sentence in prison? In my considered opinion and in the interest of justice he should not. As eluded above, the applicant requested for the copies of judgment and proceedings to file an appeal against the decision of the trial court. This in my opinion was to furtherance the interests of justice as the decision of the trial court was not final. It is a settled law that fair trial due process of the law must be observed and respected from the moment the investigation against the accused person commences until the final determination of the proceedings, which includes the appeal. So, a fair trial encompasses strict adherence to rules of natural justice, whose breach would lead to the nullification of the proceedings. Court of law has a constitutional obligation to dispense quality and equal justice. With this end, court should not unduly allow any of the parties to tacitly introduce delay or be a clog on the wheel of progress of justice or unduly deny any part his right to prosecute, defend or file an appeal for his case. Misc. Criminal Application No. 84 of 2017 6 ~ ~ ,. Sig;,:...;.= R. K. Sameji,J In my respectful view, it sounds unfair and inequality for a party to criminal or civil litigation to be punished for an error committed by the court and more specifically where the error is within the domestic affairs of the court. In any state courts of law have assumed the position of being custodian of justice, it therefore comes as a surprise and indeed it lowers down the reputation and respect of the court when parties submitting themselves to the jurisdiction of the court and the same court commit wrongs to curtail or derail the road to justice. Courts of law should ensure that its records are in track ready and available for furtherance the interest of justice. In the case of Wainaina (supra) the position was just and the Court of Appeal of Kenya ruled in the favour of the appellant. In the present matter the applicant has been in prison for more than fifteen (15) years. The trial court's decision is appealable, but due to the loss of the court's file the applicant has been unable to appeal and there is no indication that he will be able to do so in future. It is high time for the Court to hear his voice and let justice prevail. I have also considered an order for retrial, but in the circumstance of the case it is not feasible and I am guided by the principle enunciated by the Misc. Criminal Application No. 84 of 2017 7 • Sfg::/4....!.._ ' \ , R. K. Sameji,J Court in the case of Fatehali Manji v- the Republic [1966] 1 EA 343, where the court held that:- " ... in general a retrial will be ordered only when the original trial was illegal or defective, it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecutor is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interest of justice require it and should not be ordered where it is unlikely to cause an injustice to the accused person" [Emphasis added]. In the event, the only remedy to the situation at hand is to grant the Application and acquit the applicant. I therefore declare that, the Application is hereby granted, the conviction and sentence of the applicant in the Criminal Case No. 163 of 1999 is hereby quashed and set aside. The Misc. Criminal Application No. 84 of 2017 8 ~ ~~... R. K. Sameji,J appl ica nt should - b-e -releasea- from -prison lorthwith -unless- held -on- another - lawful matter. It is so ordered. DATED at Dar es Salaam this 06th day of September 2017. Delivered in Court Chambers in the presence of the appellant and Ms. Ellen Masului, the learned State Attorney for the Respondent, the Republic. A right of Appeal explained. -=::x~.;;;'~=~~~,- u meji~ - JUDGE 06/09/2017 Misc. Criminal Application No. 84 of 2017 . .1' K.Same}i,J 9