20170621 TZHC Dodoma

J_ IN THE HIGH COURT OF TANZANIA AT DODOMA DC CRIMINAL APPEAL NO 158 OF 2016 {Original Criminal Case No. 26 of 2016 of the District Court of Dodoma at Dodoma) VICTORI S/0 MNG'UNYIKA ................•............................. APPELLANT VERSUS THE REPUBLIC ............................................................... RESPONDENT- JUDGMENT 21/06/2017 & 21/06/2017 A. MOHAMED, J. The appellant was convicted of causing bodily harm contrary to section 241 the Penal Code [Cap 16 RE 2002] by the Magistrates Court of Dodoma and sentenced to serve an 18 month custodial sentence. Against both conviction and sentence he appeals on a number of grounds. However, I think it is irrelevont to restate all of the grounds as the first one is of significance. It complains that there was a change of rnagisfrates during r1earing of the case wi"thout ossigning any reason for the change. It alleges the testimonies of PWl and PW2 w..eI~.Je.corde_dJ:rthQO.Qrgble tY.LJ. Lukindo - RM qnd the testit"0.Q0!~? . . -of PW3>PW4 and PW5 Were recorde:ct...by~j-~:J~~:~ . P.ovo-:- RM whictll$ . - ----.:~---·····~-"Ga·cr"fff1ci'v·Taswasn'elcl7ri·-- tner 'ccise75T 2PHsetts":f<rrn·orcr·'\1:-""R;··~errrnlnal'?-"=~-----~-'·-· · Appeal No. 301 of 2013 (Unreported}. 1 . The brief facts of the case as stated by the prosecution are that on 6/10/2015 at Chinoje village in Chamwino district within Dodoma region, the appellant committed an assault that resulted ih bodily injury to the-·complaina-nt- one Ja.iro_s___M_h_a.0ga__ ~Y injuring him in the stomach and on the head. On 21/6/2017 when the appeal came up for hearing, the appellant represented himself whilst Ms, Taji, learned State Attorney advocated for the respondent. Ms Taji said after reviewing the file, she discovered a manifest _legal error as the record shows on 3/1 l /2015 the hearing of the case was taken over by honorable J. E. Fovo from honourable M. S. Lukindo without assigning reason for the change. She said section 214 of the Criminal Procedure Act [Cap 20 RE 2002] require reasons to be given for any change. In this regard, she supported the appeal. The appellant concurred with the counsel's reasoning and prayed to be released frorn custody. -Hqvin_g h©grg . thEp parti<?S, I alJ) in qgr8-~m~r}t wit-h t~§) contention as is has been reiterated by the Court of Appeal in ---nurr:rero-tJs·'.st-a-t-ements-thcit-ree1son :o U@ht-to be -given -fe r-ci- ch EJAge-ef- ___ -__. -ornngistraf.e•_·_al;J_rirr@l'learing,·of ·crcoS'.ftL:•.i ..• _-___ _: ___ ~.:~---~-~,.:;...-~;;_;.:_ . ,_._:~~=:~_:: .~~~---~-~-:.:.~_;=~--:. _______L,.- .'. -._- .... - . .- .- ... ·., ... ,- -..: ....• ·, .. , ,,_. ··':'¢ .. ~--- . ·.. : -_. _,.,.- --..-- ... ,---.-~------ """ . ~. --- ·' •. :~ ~. ·-::... ·,.:· .·::.. ··-·-, ... :, 'rn' .--m-,_·- ,,7'.:.,•. : .. -- ·<.' .... ·::..... ·-:··"'""'···· -· .... ·c::.. ;..~ ..... , --~-- : .. ··S.:::-···<-·'. ,:. :·. ,-. .•. ,:::?.":·-~· ·.. , ,:.~.-- .. c:;: .. ,-,-~· -~·-'·· .... ... ..,.. ' ... , .... ,,. ........ , ' "-- .. -.: _,- _,··, - .... - , .. ,. ... "'" ,,,. ... ,.,.,,..... "·- ,, .. 2 • i om therefore satisfied that the proceedings show the trial court erred on 3/11/2015 when the presiding of the hearing was taken over by M. S. Fovo from M. , S Lukindo, both learned magistrates, without assigning any reason for the change. In the final, I find merit in the appeal and allow it. Consequently the conviction is quashed and the sentence is set aside. This will result in the appellant being set free forthwith unless he is held for another lawful cause. It is so ordered. A. MOHAJ'v\ED JUDGE 21/06/2017 The right of appeal explained. A. N\OHA,MED JUDGE 21/06/2017 3