Latifa Buchandaba @ Maspana & Others vs Republic (Criminal Appeal No. 484 of 2023) [2026] TZCA 285 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: WAMBALI, J.A.. MAKUNGU. 3.A. And MGEYEKWA. J.A/1 CRIMINAL APPEAL NO. 484 OF 2023 LATIFA BUCHANDABA @ MASPANA ..... JAMES SENGIYE @ CLEMENT .......... . EMMANUEL PINDUZI @ MWENGAMIZO . 1st APPELLANT 2 nd APPELLANT 3rd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) 16th Feb. & . 9th March,2026 WAMBALI, J.A.: The appellants, Latifa Buchandaba @ Maspana, James Sengiye @ Clement and Emmanuel Pinduzi @ Mwengamizo, were jointly charged with the offence of murder contrary to section 196 of the Penal Code at the High Court of Tanzania Shinyanga sub-registry in Criminal Sessions Case No. 69 of 2021. The particulars placed before the trial court alleged that, on 21s t March 2020, at Kigwa village in Kahama District in Shinyanga Region, the appellants murdered Meshaki Jonas. fMassam. J.) Dated the 1s t day of June, 2023 in Criminal Sessions Case No. 69 of 2021 JUDGMENT OF THE COURT Ten prosecution witnesses appeared before the trial court to substantiate the allegation. Seven exhibits were also admitted in evidence in support of the prosecution case. The appellants denied the allegation from the date of arrangement and in their defences. Nevertheless, at the climax of the trial, the trial judge, having evaluated the evidence of both sides on the record, formed a firm opinion that the prosecution proved the case against the appellants beyond reasonable doubt. Consequently, she convicted the appellants of the offence of murder and subsequently imposed the mandatory death sentence on the third appellant, while the first and second appellants were in terms of section 26 (2) of the Penal Code detained at the President's pleasure. We have opted not to revisit the factual background of the case and the evidence which was tendered by both sides at the trial for the reason which will be apparent shortly. The current appeal before the Court was necessitated by the dissatisfaction of the appellants with the findings of the trial court and the ultimate convictions and sentences. It is on the record of appeal that initially the appellants jointly lodged a memorandum of appeal and supplementary memorandum of appeal. However, three counsel who were assigned to represent them jointly lodged a supplementary memorandum of appeal in substitution of the previous memoranda comprising three grounds of appeal. Considering the question on the propriety of the proceedings of the trial court regarding the determination of the age of the first and second appellants, which we intend to address in this judgment, we do not wish to reproduce the respective grounds of appeal. According to the record of appeal, on the first day on which the trial was set to commence, that is, 2n d May, 2023, after the learned State Attorney intimated to the trial court that the witnesses for the prosecution were ready to testify, Mr. Gervas Geneya, learned advocate, who was assigned to represent the first appellant, raised two concerns for the direction/orders of the trial court. One, that during the alleged date of the commission of the offence, the first appellant was 17 years old. Two, that the second appellant was forced by police officer to write 19 years. In the circumstances, he prayed that the second appellant be taken to hospital for examination of his age. He also prayed that the trial of the case be adjourned pending the report from the hospital concerning the age of the second appellant. The learned State Attorney had no objection to the prayer. However, there is no indication in the record of appeal on whether the other two advocates for the second and third appellants had anything to say on the matter. Nevertheless, the trial judge made the order that the second appellant be sent to Kahama Government Hospital for examination of his age and that the report on the finding be availed to the trial court to pave way for the trial. The record of appeal reveals further that on 4th May, 2023 the trial resumed. The learned State Attorney reminded the trial judge of the order issued on 2n d May, 2023 regarding the determination of the age of the second appellant. Though there is no indication that the learned State Attorney had in possession of the medical report, she stated that she agreed with the submission that the second appellant was a minor when the offence was committed and therefore the prosecution was ready to proceed with the trial. Notably, she did not state anything regarding the second appellant on the other hand, Mr. Gervas Geneya, learned advocate for the first appellant submitted that he had no objection to the submission of the learned State Attorney and stated that the trial court shall consider that the first and second appellants were minors during the commission of the offence and that the third appellant will be considered as an adult. Admittedly, the record of appeal does not show whether the two counsel for the second and third appellants had any response to the submissions of the learned State Attorney and Mr. Geneya, learned advocate. That notwithstanding, the trial judge briefly stated that she had no objection to the submission and subsequently, the prosecution case was open, whereby the first witness testified followed by other nine (9) witnesses on the same date. The trial was adjourned to 5th May, 2023. On that date, two witnesses for the prosecution testified. The prosecution case was then closed and a ruling was subsequently made that the appellants had a case to answer. It is apparent in the record of appeal that the appellants were, on 8th May, 2023, put in their defence and in the end, a judgment date was fixed by the trial judge to be on 1s t June, 2023. Admittedly, the judgment was delivered on the scheduled date and it is plain that the appellants were convicted of the offence of murder and sentenced to suffer death by hanging accordingly as intimated above. We thoroughly perused both the original file and the record of appeal. Unfortunately, we did not manage to trace the medical report from Kahama Government Hospital or any other hospital revealing the outcome of the examination of the age of the second appellant as directed by the trial court. We therefore wondered whether the trial court properly proceeded with trial of the appellants without determining the age of the second appellant. We further wondered whether in the absence of the medical report regarding the age of the second appellant who was mentioned in the order of the trial court, the trial judge, in terms of section 26 (2) of the Penal 5 Code, could not only sentenced the second appellant but also the first appellant who was not concerned with the order for determination of the age. To this end, we required counsel for the parties to respond to the query. In response, firstly, Messrs Frank Samwel, Gervas Geneya and Shaban Mvungi, who appeared for the first, second and third appellants, concurrently, conceded that they have never came across the medical report of the doctor from Kahama Government Hospital regarding the determination of the age of the second appellant as ordered by the trial court. They further admitted that they had never also seen any report to that effect in respect of the first appellant who was however not included in the order though he was sentenced in terms of section 26(2) of the Penal Code. Secondly, learned counsel submitted that according to the record of appeal, it is apparent that before the order concerning the determination of the age of the second appellant was made, there was no full participation of the advocates for the second and third appellants. They maintained that it is only the learned State Attorney and the advocate for the first appellant who were heard by the trial judge. Thirdly, the learned counsel argued that the trial judge could not proceed with the trial in the absence of the medical report as she had adjourned it pending being availed the respective medical report. Fourthly, 6 the learned counsel contended that because of the failure to have medical examination report determining the age of the first and the second appellants, the trial judge had no justification to impose the sentence in terms of section 126 (2) of the Penal Code in respect of the respective appellants. Lastly, the learned counsel maintained that the cumulative effect of the noted anomalies in the trial of the appellants rendered the proceedings of the trial court a nullity. In the circumstances, the learned counsel for the appellants urged the Court to invoke the provisions of the section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA), to revise and nullify the proceedings of the trial court, quash the convictions of the appellants and set aside the sentences. They also urged the Court to order a retrial. In reply, Ms. Salome Mbughuni and Ms. Gloria Richard Ndondi, learned Senior State Attorney and State Attorney respectively, who appeared for the respondent Republic, readily supported the joint and concurrent submissions of the learned counsel for the appellants. Indeed, Ms. Mbughuni, added that the apparent irregularities on the trial of the appellants caused miscarriage of justice rendering the trial proceedings a nullity. In this regard, Ms. Mbughuni joined hands with the appellants' counsel to urge the Court to nullify the proceedings and order a retrial. We entertain no doubt that the trial judge was properly guided by sections 113 and 114 (currently ss. 114 and 115) of the Law of the Child Act, with regard to the determination of the age of the second appellant when she issued the respective order. For clarity, sections 114 and 115 provide thus: "114 (1) Where a person, whether charged with an offence or not; is brought before any court otherwise than for the purpose o f giving evidence, and it appears to the court that he is a child, the court shall make due the inquiry as to the age o f that person. (2) The court shall take such evidence at the hearing o f the case which may include medical evidence and, or DNA test as is necessary to provide proof o f birth, whether it is o f documentary nature or otherwise as it appears to the court to be worth o f belief. (3) A certificate purporting to be signed by a medical practitioner registered or licensed under the provisions o f the law governing medical practice in Tanzania as to the age o f a child shall be sufficient and shall be receivable by a court without proof o f signature unless the court orders otherwise. (4) An order or judgment o f the court shall not be invalidated by any subsequent proof that the 8 age o f that person has not been correctly stated to the court and the age found by the court to be the age o f the person so brought before it shah ' for the purpose o f this section, be deemed to be the true age o f that person. (5) Medical evidence and collection o f blood for the purpose o f DNA from the child shall be conducted in the presence o f a social welfare officer 115 (1) Where it appears to the court that any person brought before it is o f the age o f beyond eighteen years, that person shall, for the purposes o f this section, be deemed not to be a child. (2) Without prejudice to the proceeding provisions o f this section, where the court has failed to establish the correct age o f the person brought before it, then the age stated by that person, parent, guardian, relative or social welfare officer shall be deemed to be the correct age o f that person." In the present case, as the trial judge had decided to make an inquiry of the age of the second appellant during the hearing of the case by seeking the medical evidence as prescribed under section 114 (2) and (3) of the Law of the Child Act, she was bound to ensure that such evidence was obtained before she proceeded to try the case against the appellants. 9 Unfortunately, until the conclusion of the trial which culminated into the convictions of the appellants with the offence of murder and the sentence which were imposed as intimated above, there is no indication in the record of appeal that such evidence was ever received from Kahama Government Hospital as directed in the order. As we have noted above, apart from lack of any medical report on the record, the order to proceed with the trial of the appellants which was made on 4th May, 2023, after the proposal by the learned State Attorney and the advocate for the first appellant does not seem to have been influenced by any medical report to the effect that the first and second appellants were persons below eighteen years. We therefore, agree with the learned counsel for the parties' submissions that, the absence of the medical report on determination of the age of the second appellant who was the subject of the order dated 2n d May, 2023, was an obstacle for the trial judge to proceed with the trial of the appellants. Even if it was intended by the trial judge to proceed with the trial until the end when the respective report would have been useful, upon the conviction for determining the relevant sentence of the appellants. However, even after convictions were entered, the trial judge proceeded to sentence the first appellant, who was not subject of the order, and the second appellant in terms of section 26(2) of the Penal Code without the medical evidence determining the proper age. That was 10 improper and rendered the proceedings tainted. Moreover, the failure by the trial judge to involve all advocates of the parties who were in court before she made the order equally tainted the proceedings from the date of the order for determining the age of the second appellant. More importantly, the advocate who was assigned to represent the second appellant did not make any statement on the matter. On the contrary, the proposal was made by the advocate for the first appellant. Therefore, the principles of fair trial were compromised leading to miscarriage of justice. Besides, as we have stated above, there was no basic evidence on the age of the first and second appellants upon which the trial judge would have relied to sentence the respective appellants under section 26 (2) of the Penal Code. In the event, considering the irregularity in participation of some of the appellants and their counsel before the order for determining the age of the second appellant was made, and the act of imposing the sentences sentence not backed by a medical report which had been requested concerning determination of the age, the trial court proceedings were rendered a nullity. As for the way forward, it is apparent as intimated above that, counsel for both sides are at one that in the circumstances of this case, a retrial be ordered. We equally endorse the prayer for the interest of justice. 11 In the result, we invoke the provisions of section 6 (2) of the AJA to revise and nullify the proceedings of the High Court for occasioning miscarriage of justice. Consequently, we quash the convictions and set aside the sentences imposed on the appellants. In the end, we order a retrial which must be conducted in accordance with the law as soon as practicable. Meanwhile the appellants shall remain in custody pending retrial. DATED at SHINYANGA this 7th day of March, 2026. The Judgment delivered this 9th day of March, 2026 in the presence of the Appellants in person, Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Elias Nkwabi, Court Clerk; is hereby certified as a true copy of the original. F. L. K. WAMBALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL 12