Ledeki Mwile vs Republic (Criminal Appeal No. 417 of 2023) [2026] TZCA 302 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUVE. 3.A.. RUMANYIKA. 3.A. And AGATHO. 3.A.) CRIMINAL APPEAL NO. 417 OF 2023 LEDEKI M W ILE .......................................................................... APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Karavemaha. 3 .^ dated the 5th day of April, 2023 in Criminal Appeal No. 59 of 2022 JUDGMENT OF THE COURT 5,h & 11m March, 2026. MKUYE. 3.A.: The appellant was arraigned before the Resident Magistrate's Court of Mbeya at Mbeya for an offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R.E 2002. It was alleged in the particulars of offence that, on 19th August 2019 at Jojo Santilya area within the District and Region of Mbeya, the appellant unlawfully had carnal knowledge of A d/o J (name withheld) a girl aged 13 years old. The appellant denied the charge and the trial proceeded. 1

The brief background of the case is as follows: On the material date, A d/o J (who shall also be referred to as "PW1" or "the victim") then 13 years old, and her friend Latifa, were at a nearby river washing domestic utensils. Then, the appellant approached the two girls with two other boys. At first, he asked them about fish in the river but later grabbed the victim with the assistance of the two boys who later fled away from the scene of crime. Thereafter, the appellant pushed the victim to the ground. He then removed her trouser and underpants, then his own and forced himself upon her, threatening her with a knife while warning her that if she screamed, he would cut off one of her breasts and flee with it. Upon quenching his sexual desire, the appellant fled the scene. The victim raised from the ground and headed way back home. On her way, she met her aunt, to whom she reported the ordeal. The aunt immediately took her to the village chairman, who issued a letter for medical attention. At Mbalizi Hospital, Dr. Queen Aron Kanyule (PW6) examined the victim at about 4.00pm and observed that the victim's hymen was

perforated by a blunt object. She also found the vagina with bruises and redness. The appellant was arrested on 19thAugust 2019 and taken to Mbalizi Police Station by PW4, MG 455386 Halid Bafuta. At the conclusion of the trial, during which the appellant had been jumped bail, the trial court was satisfied that the prosecution had proved its case beyond reasonable doubt. Consequently, the court convicted him in absentia on 4th November 2020. According to the record of appeal, it would appear that, the appellant was arrested and brought before the court on 2n d February 2021. He was then required to show cause as to why he disappeared while knowing he had a case before the court and he said he was sick and that he had communicated with his lawyer. The trial court rejected that reason and proceeded to sentence him to imprisonment for a term of thirty years after having heard the antecedents and mitigation from the parties. Aggrieved by the trial court's decision, the appellant appealed to the High Court but his appeal was not successful. Still protesting his innocence, he has lodged an appeal to this Court on five grounds of appeal 3

which for a reason that will shortly come into light, we shall not reproduce them. When the appeal was called on for hearing, the appellant appeared in person and unrepresented whereas the respondent Republic had the services of Mr. Alex Mwita and Mses. Naomi Mollel together with Hannarose Kasambala, all Senior State Attorneys teaming up with Mr. Dominick Mushi, learned State Attorney. The appellant sought the indulgence of the Court to adopt his grounds of appeal and opted to let the learned State Attorneys respond first while reserving his right to rejoin later, if need would arise. On set, Ms. Kasambala declared their stance that they supported the appeal on ground no. 5 of the memorandum of appeal to the effect that: "5. That, the defence o f the appellant was not considered by all (sic) two courts". Expounding on the ground of appeal, Ms. Kasambala submitted that the appellant's defence was not considered as required under section 226 (2) of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA) now section 243 (2) of the CPA Cap 20 R.E. 2023. She argued that, in the RM's Court the appellant did not defend himself as he had jumped bail for four 4

months from 28th September 2020 until 2n d February 2021 after being arrested by the police, while by then, the trial court had proceeded with hearing and at the end the appellant was convicted in his absence. When the appellant was asked why he was not in attendance in court, he said, he was sick and had informed his advocate. After having heard from the prosecution, the trial court ruled against him as the reason was found to have no basis and proceeded to sentence him accordingly. It was Ms. Kasambala's argument that the procedure adopted by the trial magistrate was not proper as it contravened section 243 (2) of the CPA which provides that where the court convicts the accused in his absence, it may set aside such finding if satisfied that his absence was beyond his control or had a defence which could lead to succeed in the case. To fortify her argument, the learned Senior State Attorney referred us to the case of Abdul-Rahman Kassim @Dodo v. Republic, [2024] TZCA 1163 - page 10, where the Court observed that such omission was fatal and nullified the proceedings from when the appellant was brought to court and the judgments of the two courts below and remitted the matter to the trial court so that it can be tried before another magistrate in accordance with the law. 5

In this regard, the learned Senior State Attorney implored the Court to invoke section 6 (2) of the Appellate Jurisdiction Act, Cap 141 R.E 2023 to nullify the decisions of both courts below and remit the case file to the RM's Court of Mbeya so that the appellant can be heard. In rejoinder, the appellant insisted to the Court to consider his grounds of appeal and set him free. Having examined the relevant ground of appeal and the submission from the respondent, we think, the issue for this Court's determination is whether the appellant was denied the right to defend himself. The law governing the procedure on non-appearance of the accused at the hearing of the case is section 226 now 243 of the CPA. The said section provides as follows: "(1) Where at the time or place to which the hearing or further hearing is adjourned the accused person does not appear before the court in which the order o f adjournment was made, it shall be lawful for the court to proceed with the hearing or further hearing as if the accused person was present; and the complainant does not appear, the court may dismiss the charge and discharge the accused with or without costs as the court thinks fit. 6

(2) Where the court convicts the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which had no control and that he had probable defence on merit. (3 )... N /A ... (4) The court, in its discretion, may refrain from convicting the accused in his absence, and in every such case, the court shall issue a warrant for the apprehension o f the accused person and cause him to be brought before the court". In terms of the above provision, the court is allowed to proceed with the hearing of the case even if the accused person is absent. However, if the said accused appears before or after conviction is entered, the court is duty bound to ask him if he has any explanation for his absence and probable defence as per section 243 (2) of the CPA. In case the court is satisfied that the accused had a good cause and a probable defence, it can set aside the conviction and afford him the right to defend himself. If the conviction had not been entered, then the court is required to refrain from entering a judgment with a view to hearing the accused's defence which will be incorporated in its judgment. This position was taken by the Court in the case of Abdul-Rahman Kasimu @Dodo (supra), in 7

deliberating on a similar issue. While citing the case of Shija Mdali @Malongo v. Republic, [2023] TZCA 17744, the Court stated that: "... We are settled that section 226 (4) o f the C.P.A. [now 243 (4)] which empowers the trial court to refrain from convicting an accused person in absentia and causing him to be brought before the court is meant to afford an opportunity to the accused person upon his appearance before the court to explain whether he had good cause for his absence and whether he had a probable defence on merit before the trial court may determine to proceed to convict him as charged or re-open the proceedings to hear the accused in his defence on merit. " [Emphasis added] In this case, as was hinted above, the case against the appellant proceeded in his absence up to the stage when the conviction was entered against him. The same was pronounced in the appellant's absence on 4th November 2020. He appeared in court on 2n d February 2021 after being apprehended by the police officer. Upon being asked as to why he disappeared as shown at page 49 of the record of appeal, he told the court that: "I was sick thus (sic) why I did not appear before the court, I was (sic) also communicated with 8

lawyer." But the learned State Attorney resisted to such appellant's claim contending that his lawyer was present in court and prayed to withdraw his legal services because she had lost contact with the accused. He also objected the appellant's claim of sickness that it was not true and wondered why even his sureties did not come to inform the court about his sickness. The trial court considered the rival arguments and at the end it rejected the reasons advanced by the appellant to be not true and it proceeded with hearing the antecedents from the State Attorney and his mitigation before pronouncing sentence. Looking at the proceedings on that day, we note that the trial court did not properly explain to the appellant as to what section226 (2) of the CPA entailed. Much as it required the appellant to show cause as to his absence, the appellant was not informed if he had a probable defence on merit. Since the appellant was not addressed on such a vital requirement, and the trial court proceeded with convicting and sentencing him, the omission amounted to the breach of principles of natural justice, in particular, violation of a fundamental right as stipulated under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania Cap 2 R.E 9

2023 prohibiting a person to be condemned unheard. There is no doubt that, this vitiated both the judgment and sentence against the appellant. In times without number this Court has pronounced itself on the importance of the right to be heard before an adverse decision is passed. See: Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R. 251. Also in the case of Dishon John Mtaita v. The Director of Public Prosecutions [2007] TZCA 281, the Court stressed on the right to be heard as follows: "The right of a party to be heard before an adverse action or decision is taken against such a party has been stated and emphasized by the Courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it wiii be nullified, even if the same decision would have been reached had the party been heard because the violation is considered to be a breach o f the principles o f naturaljustice." Even in this matter, we agree with the learned Senior State Attorney that the appellant was denied the right to be heard in defence as he was not afforded an opportunity to show if he had probable defence to the case. This was procedural irregularity which had the consequence of vitiating the proceedings. 10

Consequently, in terms of section 6 (2) of the AJA, we nullify the proceedings of the trial court from the 2n d February 2021 and of the High Court, quash the judgments of the two courts below and set aside the resultant sentence imposed on the appellant. We further order that the appellant be heard in defence before another magistrate with competent jurisdiction to decide the case in accordance with the law. DATED at MBEYA this 10th day of March, 2026. Judgment delivered this 11th day of March, 2026 in the presence of the appellant in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Ms. Jasmin Kazi, Court Clerk is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL