20180509 TZHC Mbeya

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IN THE HIGH COURT OF TANZANIA

AT MBEYA CRIMINAL APPEAL NO.80 OF 2017 (Original Criminal CASE No.100 of201 4 in the District Court of Mbozi at Vwawa) TILSON s/o 1VTIJ4E1JGA .......................................... ..PPELLANT

VERSUS THE R..EPiJBLIC .................................................... RESPONDENT

JUDGMENT Date of last Order: 0910512018 Date of Judgment: 0910512018 NGWALA, J: The appellant had been charged of offence of Attempted Rape Contrary to Section 132(2) (a) of the Penal Code, [Cap.

16. R.E.2002]. He was convicted and sentenced to (30) thirty years imprisonment under the same provisions of Section 132(2) of the Penal Code, [Cap.16.R.E.2002]. The appellant is aggrieved with both the conviction and sentence. His main complaint in the Petition of Appeal is that he was not given a fair trial. The trial Magistrate convicted the appellant without taking into consideration that he was fluent in "Kinyiha" language and not Kiswahili or English. 1 It is the appellant's argument that he did not know the language that was used by the Court. He did not know the nature of the offence which he stood charged. The case of Joseph Maweta v. Lekitetyi Kawasi [1992] TLR 70 was cited to support his contention. In that case the Court held that:- "1n conducting a trial against the respondent who did not know Kiswahili without the assistance of an interpreter is an incurable irregularity. The respondent was not given a fair trial". Miss Xavier Makombe the learned State Attorney, who represented the Republic supported the appeal. She submitted that, it was wrong for the trial Magistrate to convict the appellant who had not pleaded guilty to that offence of attempted rape. The trial Magistrate wrongly cOnvicted the appellant who had pleaded not guilty of that offence. Furthermore Miss Makombe submitted that the conviction of the Magistrate was based on the admission by the accused

person to the facts in the paragraph during Preliminary Hearing under Section 192 of the Criminal Procedure Act, [Cap.20 R.E.20021. For this reason Miss Makombe prayed for an order for Retrial. Upon perusal of the record I have noted that in answer to the charge the accused person said "it is not true". A plea of not guilty to the charge was entered. 2 It is only during the Preliminary Hearing the provisions of Section ) 192 of the Criminal Procedure Act that it is on the record of the trial Court that the accused person admitted the paragraphs which were not shown. For the sake of clarity the record reads:- "1st paragraph - admitted 2nd paragraph - admitted 3rd paragraph - admitted 4th paragraph - admitted 5th paragraph - admitted Memorandum of undisputed facts: Paragraphs 1,2,3,4 and 5 are admitted. Accused: RTP PP: Signature of Public Prosecutor Sgd Trial Magistrate Signature: Sgd Court: Accused person is hereby Convicted u/s 132(2) of the Penal Code [Cap. 1 6.R.E.2 002]. For his own plea of guilty. Sgd. 25/06/2014". As shown above, it is after those unknown facts in the proceedings were admitted that the accused person was convicted. There is nowhere shown that the accused person had changed his Plea from a Plea of Not Guilty to a Plea of Guilty. 3 , The accused person had not pleaded guilty, therefore it was upon ) the prosecution side to call the witness to prove their

case in accordance with the provisions of Section of 229 of the Criminal Procedure Act [Cap.20.R.E.2002]. The procedure on a plea of not guilty was not followed. The procedure adopted by the trial Magistrate is irregular and an incurable defective. It has occasioned gross injustice to the appellant who has been wrongly convicted. The appellant was jailed or incarcerated since the 3rd September 2014. The Conviction and Sentence is illegal. It is set aside. For the reasons stated, in the exercise of this Court's both appellate and revisional jurisdiction I do not think it is in the best interest of justice to order that the accused person be retried by a Court of competent jurisdiction. Let the accused person be released from custody forthwith unless lawfully held for another cause. Appeal allowed. A.F. Ngwala Judge 09/05/2018 Court: Right of Appeal to Court of Appeal of Tanzania explained. #ftMQe. - A F Ngwala .1 LT... .. \ Judge , - --7 •/ 09/05/2018 4