Richard Bahati @ Bahati @ Msumba @ Richard @ Michembe @ Shitungulu vs Republic (Criminal Appeal No. 925 of 2023) [2026] TZCA 291 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAMBALI. J.A., MAKUNGU. J.A. And MGEYEKWA, J.A.^ CRIMINAL APPEAL N0.925 OF 2023 RICHARD BAHATI @ BAHATI @ MSUMBA @ RICHARD @ MICHEMBE @ SHITUNGULU............................................... APPELLANT VERSUS THE REPUBLIC ....... ..... .........RESPONDENT (Appeal from the decision of the High Court of Shinyanga at Shinyanga) (Massam, 3.) dated the 20th day of November, 2023 in Criminal Sessions Case No. 85 of 2022 JUDGMENT OF THE COURT 25tn February & 9th March, 2026 MGEYEKWA, 3.A.: The appellant, Richard Bahati @ Bahati @ Msumba @ Richard @ Michembe @ Shitungulu was arraigned before the High Court of Tanzania at Shinyanga on two counts. In the first count, he was charged with murder contrary to section 196 of the Penal Code. It was alleged that on 1s t March, 2022, at Lutubiga village within Busega District in Shinyanga Region, the appellant murdered one Thomas Buluba. On the second count, the appellant was charged with attempted murder contrary to section 211 (a) of the Penal Code. It was alleged that on the same date, the same place as in the first count, the appellant did unlawful attempt to murder one Mbuke Masanganya Masuka. For purpose of this judgment, we shall refer the girl as a "victim" or "PW1", the codename by which she testified before the trial court. The appellant pleaded not guilty to the information. In order to prove its case on both counts, the prosecution paraded four witnesses and tendered two documentary exhibits namely, postmortem report of the deceased (exhibit PI) and the PF3 of the victim (exhibit P2). On his part, the appellant was the sole witness for the defence. After a full trial, the learned Judge evaluated the prosecution and defence evidence in which it came to the conclusion that the appellant murdered Thomas Buluba. It therefore convicted the appellant on both counts and sentenced the appellant to death by hanging. For the reason to be apparent shortly, we do not intend to revisit the substance of the evidence for both sides. Dissatisfied with the decision of the High Court, the appellant appealed to the Court raising five grounds of appeal in substantive memorandum of appeal. On 12th November, 2025, pursuant to rule 73(2) of the Tanzania Court of Appeal Rules, 2009, counsel assigned to represent the appellant filed a supplementary memorandum of appeal 2 raising three grounds. Nevertheless, we do not deem it necessary to recite all grounds of appeal. However, for the reason which will be apparent shortly, at the hearing, it became apparent that this appeal can be determined based on the second ground of appeal only, which, in essence, may be paraphrased as hereunder: "That the learned Judge of the High Court erred in law in proceeding with the trial without ensuring compliance with the mandatory procedure relating to the participation o f an interpreter, thereby vitiating the proceedings." At the hearing of the appeal, the appellant was represented by Mr. Geofrey Tuli, learned counsel while the respondent Republic was represented by Ms. Suzan Masule assisted by Mr. Jukae! Jairo, both learned Senior State Attorneys. Since the appellants did not understand Kiswahili, the service of an interpreter (Kiswahili to Kisukuma and vice versa) was provided through one Edina Hamis Robert. When accorded the floor, Mr. Tuli spiritedly submitted that the learned trial Judge feli into error by proceeding with the hearing notwithstanding that PW1, the key witness of the prosecution case did not understand the language of the court. He further submitted that on 18th November, 2023, when PW1 was called to testify, an interpreter was present and duly sworn, however, the record of proceedings in the record of appeal does not show that the interpreter was sworn to interpret from English into Kiswahili and/or from Kiswahili into PW l's native language and vice versa. The learned counsel further asserted that the omission was not a mere irregularity but one that struck at the root of the PW l's statutory right to a fair hearing, thus rendering the entire proceedings a nullity. In the circumstances, Mr. Tuli urged the Court to invoke the provisions of section 6 (2) of the Appellate Jurisdiction Act, Cap.141 (the AJA) to nullify the proceedings by the High Court in Criminal Sessions Case No. 85 of 2022, quash the conviction of the appellant, set aside the sentence and remit the case file to the High Court for a fresh trial in accordance with the law. On the way forward, Mr. Tuli asserted that since PW1 was the only eyewitness and her evidence is not straight, ordering retrial would allow the prosecution to fill in the gaps. He therefore prayed the Court to allow the appeal and set free the appellant. In response, Ms. Masule candidly conceded that the proceedings before the High Court were tainted with irregularity. She submitted that although the interpreter was properly introduced and sworn, the record of appeal does not indicate that the interpreter was sworn to interpret from English into Kiswahili and/or from Kiswahili into the appellant's native language and vice versa. The learned Senior State Attorney asserted that, it is apparent that both courts did not adhere to the requirement of section 227 (1) (then 211) of the Criminal Procedure Act, Cap. 20 (the CPA), which guarantees an accused person the right to the assistance of an interpreter where he does not understand the language used by the court. Ms. Masule further submitted that the omission was not a mere procedural lapse but a fatal irregularity which vitiated the High Court proceedings. She beseeched the Court to order a retrial in the interests of justice. On the way forward, Ms. Masule urged the Court to nullify the impugned proceedings, quash the conviction of the appellant, set aside the sentence and remit the file to the High Court for afresh trial. To support her proposition, she cited the decisions of the Court in Mohamed Ally v. Republic, Criminal Appeal No. 153 of 2006 and Fatuma Rashid v. Republic, Criminal Appeal No. 44 of 2015 (both unreported). We have considered the submissions of learned counsel on the sole ground of appeal. The issue for our determination is whether the trial before the High Court was conducted in compliance with the mandatory procedure governing the participation of an interpreter. It is settled law that whenever it appears an accused person/or witness does not understand the language of the court during proceedings of the case, accused person/ or witness should be provided with an interpreter so as to enable the appellant to understand the proceedings of his case. In Kigundu Francis Jackson Mussa v. Republic, (Criminal Appeal No. 314 of 2010) [2011] TZCA 341 (25 November 2011, TanzLII), it held that: "...under section 211 o f the Criminal Procedure Act the court may, in such situations, arrange for some interpreter to translate the proceedings or evidence for the accused person or from witnesses who do not understand the language o f the court." For clarity, we deem it appropriate to reproduce the provisions of section 227 of the CPA, which provide as follows: "Section 227 (1) o f the CPA requires that whenever it appears an accused person does not understand the language spoken during the proceedings of the case, an accused person should be provided with an interpreter so as to enable him to understand the proceedings of his case. The omission not to comply with the requirements o f section 211 (1) o f the CPA renders the proceedings of the case nuli and void. "[Emphasis added] The foregoing pronouncement makes it plain that at every stage of criminal proceedings trial included once a language barrier on the part of the accused or witness becomes apparent, the provision of an interpreter is imperative. The duty to secure and appoint an interpreter does not rest upon the prosecution, nor upon any of the parties to the case; it is a duty incumbent upon the trial court itself, to be discharged whenever it becomes apparent that such necessity exists. See Kalyehu Kadama @ Madaha & Another v. Republic (Criminal Appeal No. 403 of 2021) [2023] TZCA 17670 (29 September 2023, TanzLII). In the presnet case, as intimated above the prosecution witness (PW1) did not understand Kiswahili. The record of appeal indicates that on 8th November, 2023, an interpreter one Kisasila, was introduced and sworn. However, the record does not disclose whether the interpreter was sworn to interpret from English into Kiswahili and/or from Kiswahili into the appellant's native language and vice versa as intimated above. It is apparent that the testimony of the victim was interpreted by a person who was not competent to do so. We are thus certain that, had the learned first appellate Judge addressed her mind to the above stated irregularities, she would have found that the evidence of PW1, which was interpreted by an interpreter who did not state that he will translate from English into Kiswahili and/or from Kiswahili into the appellant's native language and vice versa, was inadmissible. In the circumstances, we agree with both learned counsel that PW1 evidence impacted the rest of proceedings and thus cannot be left to stand. In the circumstances, in the present case, it cannot be said that there was a fair trial. 7 The consequences of non-compliance with the requirement of the law constitutes a fundamental breach of the appellants right to understand and follow the proceedings against him, and amounts to a fatal omission. In Republic v. Elias Michael @ Luhiye & Others (Criminal Revision No.2 of 2018) [2020] TZCA 1863 (23 November 2020, TanzLII), the Court held that where non-compliance with procedural requirements prejudices the accused, the trial following therefrom is rendered a nullity. For similar position see Juma Ndodi v. Republic (Criminal Appeal No.588 of 2020) [2023] TZCA 17411 (17 July 2023, TanzLII). On the way forward, we have considered the rival arguments between the appellants' counsel and the learned Senior State Attorney. We are mindful that the said defect is procedural; it strikes at the fairness of the process by which such evidence was received and recorded. We are equally alive to the gravity of the charge preferred against the appellant and that the prosecution's case rests on the evidence of identification. In the circumstances, and upon our careful scrutiny of the record of appeal, we discern nothing to suggest that miscarriage of justice or prejuidice will be occassioned on the part of the appellant if an order of a retrial is made by the Court. In the circumstances, we invoke the provision of section 6 (2) of the AJA to revise and nullify the proceedings of the High Court, quash the convictions of the appellant and set aside the sentences. Consequently, we remit the file in Criminal Sessions Case No. 85 of 2022 to the High Court to conduct afresh trial as soon as practicable. Meanwhile, the appellant should remain in custody. DATED at SHINYANGA this 6th day of March, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL 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.