Said Ally vs Republic (Criminal Appeal No. 878 of 2023) [2026] TZCA 281 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA ( CORAM: WAMBALL J.A.. MAKUNGU. 3.A. AND MGEYEKWA. J.A.1 CRIMINAL APPEAL NO. 878 OF 2023 SAID A L L Y ............ . ............... . ................................ . ......................APPELLANT VERSUS THE REPUBLIC ................... . ...................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Morris. J.) dated the 31st day of October, 2023 in Criminal Appeal No. 13 of 2022 JUDGMENT OF THE COURT 20th February & 9th March, 2026 MAKUNGU. J.A.: The appellant, Said Ally was charged before the District Court of Shinyanga at Shinyanga (the trial court) with three counts. The first count was rape contrary to sections 130 (1) and (2)(e) and 131 of the Panel Code Cap. 16. It was particularized that, on diverse dates between 23rd March, 2020, 30th March 2020 and 19th September, 2020 at Viwanja vya Mwadui, within Shinyanga Municipality in Shinyanga Region the appellant had sexual intercourse with a girl aged 16 years old. The second count was on the offence of impregnating a school girl contrary to section 60A l of the Education Act, as amended by section 22 of the Written Laws (Miscellaneous Amendments) Act, No. 2 of 2016. It was alleged that on the same dates appearing in count one, that the appellant impregnated a school girl aged 16 years of Mwadui Primary School, We shall refer to her as "PWI". The third count was rape contrary to sections 130 (1) and (2)(e) and 131 of the Panel Code, Cap. 16. It was alleged that on diverse dates between 27th March, 2020 and 20th September, 2020 at Viwanja vya Mwadui, within Shinyanga Municipality in Shinyanga Region, the appellant had sexual intercourse with a girl aged 10 years old. We shall refer to her as "PW2". The appellant denied the charges. Thus, a full trial ensued whereby the prosecution case was built upon five witnesses and four documentary exhibits, in support of the charges. For reasons to be apparent shortly, we do not intend to revisit the substance of the evidence for both sides. The dissatisfaction of the appellant with the finding and conviction by the lower courts prompted him to lodge the present appeal. In the memorandum of appeal, the appellant has fronted five (5) grounds of complaint. Nevertheless, as intimated above with respect to the factual 2 background of the case, we do not intend to reproduce the respective grounds of appeal herein. At the hearing of the appeal, before us, the appellant appeared in person, unrepresented, whereas Ms. Mwamini Fyeregete, learned Senior State Attorney assisted by Mr. Satuninus Kamala, learned State Attorney, represented the respondent Republic. When the appellant was invited to amplify on his grounds of appeal, he prayed to adopt his grounds of appeal as his submission and let the learned Senior State Attorney submit first reserving his right to respond later. He urged the Court to consider the grounds, allow the appeal and set him free. In her response, Ms. Fyeregete initially stood in position that the charges against the appellant were proved beyond reasonable doubt and that she supported the convictions and the sentences meted out against the appellant. But, in the course of her submission, we prompted her on whether the amended charge sheet granted by the trial court existed in the record of appeal. The learned Senior State Attorney upon scanning through both the trial court's original file and the record of appeal, she quickly conceded that indeed there was no amended charge as pointed out by the Court. Thus, upon realizing that she was treading solitary path, she abandoned the course and threw her weight in support of the appeal on a point of law. In her brief submission in that respect, the learned Senior State Attorney elaborated that, the record of appeal reveals that on 1/9/2021 the prosecution had prayed and the request to amend the charge was granted. She went on to submit that, following the amendment, the appellant was requested to plead. However, she submitted that the said amended charge to which the appellant pleaded formed the basis of the conviction entered against him, is missing in the record of appeal. It was her contention that, with such an omission, it cannot be ascertained whether the appellant was properly charged. On that account, Ms. Fyeregete beseeched the Court to nullify the trial court proceedings and those of the High Court on appeal. However, she stated that in view of the insufficient of evidence, the appellant be released from prison instead of ordering a retrial The appellant being a lay person, had nothing useful to contribute on that aspect. Instead, he prayed to be released from prison where he claimed to have stayed for a long time. Having heard the learned Senior State Attorney on the raised shortcoming, the issue for our determination is whether the appellant was properly charged, tried, convicted and sentenced by the trial court. 4 It is worth to give a background of the case as per the record of appeal. On 2/10/2020 the appellant appeared before the District Court of Shinyanga, to answer the intimated charges. According to the charge sheet dated 1/10/2020, the charge laid before him contained three counts stated above which he pleaded not guilty. On 10/5/2021, the prosecutor prayed: "The m atter is com ing fo r prelim inary hearing but before we proceed we pray to read the charge." Court: Noted, prayer granted. On 17/8/2021, the prosecutor prayed: " / pray to am end the charge and also to read the facts constituting offences." Court: Noted. Again, the appellant pleaded not guilty to the amended charge and the trial begun in which three witnesses testified. Moreover on 1/9/2021, the prosecutor prayed: "We prosecution side pray to am end the charge in respect o f 2nd count on particulars o f the offences as w ell as on J d count in respect o f victim age. C ou rt: noted, prayer granted. 5 C o u rt: The am ended charge read over and fu lly explained to accused person who is asked to plead thereto". Again, the appellant pleaded not guilty to the amended charge. However, the respective amended charge is nowhere to be found in the record of appeal. We have deliberately highlighted the background above in order to show the confusion that confronted the trial of the appellant which is compounded by the absence of the " am ended charge sh e e t in the record of appeal. There is no dispute that, the charge was amended three times. There is also no dispute that the last amendment of the charge was done on 1st September, 2021. However, the said charge is not in the record of appeal. Having found that, the charge which formed the basis of the appellant's pleas is non-existent in the record of appeal, there is no assurance that, the appellant's trial was fair. Insisting the importance of a charge in a criminal trial, the Court in Paulo Apolo v. Republic (Criminal Appeal No. 260 of 2015) [2016] TZCA 812 (23 May 2016, TANZLII) observed as follows: 6 "The charge sheet or inform ation is a vita! docum ent in a crim inal proceeding because it institu tes a crim inal case. Its purpose is to give intim ation to the accused o f dear, unam biguous and precise notice o f the nature o f the accusation that he is called upon to m eet in the course o f a trial. This is an essential com ponent o f any fa ir tria l (See M USSA M W AIKUND A V. R [2006] T.L.R. 387. ” Moreover, the Court in Paulo Apolo v. Republic (supra), went further to state the following as regards the missing substituted charge: ", ..In to tality o f the circum stances and in particular the absence o f the copy o f the charge sheet which was allegedly substituted, this Court has been disabled from perform ing its prim ary duty, that o f exam ining if there were any errors in the charge which were prejudicial to any parties... We can only say with certainty that we are not sure whether the appellant has received a fa ir trial. So h is conviction is not safe . " The same stance was taken in Samwel Gitau Saitoti @ Saimoo & Another v. Republic (Criminal Appeal No. 5 of 2016) [2019] TZCA 307 (30 August 2019, TANZLII) when the Court was invited to determine the propriety of the conviction in the absence of a substituted charge. It stated: "We are inclined to agree that the com plaint is ju stifie d but even if it was not, the determ ination o f it th is way o r the other can only be made by exam ining the charge sheet resuiting into the appellant's conviction. W ith o u t th e su b stitu te d ch arg e sh e e t in th e re co rd o f ap p eal, th e C o u rt ca n n o t be in a p o sitio n to d eterm in e w h eth er o r n o t a p p e lla n ts w ere co n v icte d on th e b a sis o f a p ro p e r charge". [Emphasis added] See also: SU ivanus N y a u lu li @ Musa v. The R e p u b lic (Crim inal Appeal No. 615 o f 2021) [2025] TZCA 66 (24 February 2025, TANZU1). Flowing from the above authorities, we have no hesitation to hold as we hereby do that, it is apparent that the appellant did not receive a fair trial and thus we cannot conclude that, his conviction was safe. Consequently, the trial was rendered a nullity by lack of the charge which he was called upon to plead. On the way forward, we are in agreement with Ms. Fyeregete's submission that this is not a fit case for ordering a retrial on the grounds that there was insufficient evidence to implicate the appellant. We find, in the circumstances of this case that, for all purposes and intents and considering the factual setting in the record of appeal we hold that an order for retrial will not be in the best interest of justice. 8 In the result, we have no option but to invoke our powers in terms of section 6 (2) of the Appellant Jurisdiction Act, to revise and nullify the proceedings before the lower courts, quash the appellant's convictions and set aside the imprisonment sentences imposed on him. Consequently, we order for his immediate release from jail if he is not otherwise detained for some other lawful cause. DATED at SHINYANGA this 7th 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 Appellant in person, Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Elias Nkwabi, Court Clerk ‘ iginal. 9