Zengo Charles vs Republic (Criminal Appeal No. 871 of 2023) [2026] TZCA 282 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA ( CORAM: WAMBALL J.A., MAKUNGU. 3.A. And MGEYEKWA, J.A.^ CRIMINAL APPEAL NO. 871 OF 2023 ZENGO CHARLES ..................................................................... APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Morris. J.^ l dated the 27thday of October 2023 in Criminal Appeal No. 115 of 2022 JUDGMENT OF THE COURT 24th February & 9th March, 2026 MGEYEKWA. J.A:. In the District Court of Kahama at Kahama, the appellant, Zengo Charles was charged with the offence of incest by male contrary to section 158 (1) of the Penal Code. It was alleged that on 9th May, 2022 at Kitongo village within Msaiala District Council in Kahama District within Shinyanga Region, the appellant had sexual intercourse with a girl aged 13 years while having knowledge that she is his biological daughter. The appellant pleaded not guilty to the information, whereupon the prosecution featured four witnesses and tendered one documentary evidence, a medical examination report (exhibit PI) in support of its accusation. The appellant was the only witness for the defence side and he did not tender any documentary evidence. After the end of trial, the appellant was convicted and sentenced to serve thirty years imprisonment. For the reason to be apparent shortly, we do not intend to revisit the substance of the evidence for both sides. The appellant unsuccessful preferred the first appeal to the High Court at Shinyanga, hence this second appeal. The appellant lodged a memorandum of appeal comprising three grounds of appeal. As intimated earlier with respect to the factual background of the case, we do not intend to reproduce the respective grounds of appeal herein. At the hearing of the appeal, the appellant appeared in person, unrepresented while the respondent was represented by Ms. Mwamini Fyeregete, learned Senior State Attorney and Ms. Gloria Richard Ndondi, learned State Attorney. However, in arguing against the appeal, it was Ms. Ndondi who took charge. She stoutly resisted the appeal. 2 Before the hearing commenced, we invited the parties to address the Court on the propriety of the substantive charge sheet lodged on 19th May 2022 and the purported substituted charge sheet filed on 15th July 2022 during the pendency of the hearing. In response, Ms. Ndondi submitted that upon a thorough perusal of the record of appeal, she noted that the charge sheet filed on 19th May, 2022 had alterations on the face of it. In particular, the name of the offender had been crossed out without any endorsement or acknowledgment of the amendment. Ms. Ndondi went on to submit that the record of appeal clearly shows that on 15thJuly, 2022, the prosecution prayed to substitute the charge sheet without assigning any reasons for the proposed substitution which was procedurally improper. It was her further submission that failure to assign any reason for substitution rendered the charge sheet defective on its face, as the proper legal procedure for amendment or substitution of a charge sheet had not been followed. She further submitted that, in effect, there was no valid charge properly lodged before the trial court. Ms. Ndondi added that failure to file a proper substitution charge was not a mere technical lapse but a fundamental defect because a valid charge is a foundation of any 3 criminal trial. She added that in the absence of a proper charge, the entire trial and the subsequent proceedings were rendered a nullity. Further, when prompted by the Court as to whether the trial court and the first appellate court, in their respective judgments, referred upon the substantive date of commission, namely 2n d May, 2022, or the substituted date of 9th May, 2022. In response, the learned State Attorney candidly conceded that both the trial court and the first appellate court referred to 2n d May, 2022 as reflected in the substantive charge that was purportedly substituted. She added that, that position, as shown in the record of appeal, demonstrates that notwithstanding the alleged substitution of the charge, the courts below anchored their findings on the substantive date of commission. In the circumstances, the learned State Attorney urged this Court to invoke its powers under section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 [R.E. 2023] (the ADA), to revise and nullify the proceedings, quash the conviction, set aside the sentence and discharge the appellant. On his part, the appellant did not advance any substantive submissions. He instead urged the Court to re-evaluate the evidence on record and set him at liberty. We have anxiously considered the submissions of both sides and carefully perused the record of appeal. The central issue for our determination is whether the alteration and subsequent substitution of the charge sheet complied with the law and, if not, the legal effect thereof. Our starting point is section 251 (1) (then 234) of the Criminal Procedure Act, Cap. 20 [R.E. 2023], which empowers a court, at any stage of a trial, to order the alteration of a charge by way of amendment, substitution or addition. The provision state: "251-(1) Where, at any stage o f a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration o f the charge either by way of amendment o f the charge or by substitution or addition o f a new charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice; and ait amendments made under the provisions of this subsection shall be made upon such terms as the court shall deem ju s t" 5 The foregoing provision underscores the imperative of strict adherence to procedural propriety whenever a charge is amended or substituted. In the present case, the record reveals that the charge sheet lodged on 15thMay, 2022 bore alterations on its face. Of particular concern is that the name of the alleged initial offender namely Edward Shija was crossed out and substituted with the name of the appellant without any formal endorsement, signature or authentication. Equally, in the purported substituted charge, though the name of the appellant appeared both the date of commission of the alleged offence and the date of presenting before the court were altered by a pen without any formal amendment as required by the law. The alterations were made in contravention of the prescribed procedure as intimated above; they are therefore irregular and incapable of imparting any validity to the charge. Moreover, as rightly submitted by Ms. Ndondi, the record discloses that on 15th July, 2022, the prosecution prayed to substitute the charge without assigning any reasons for the proposed substitution. It is settled law that a charge constitutes a foundation in criminal trial. It is the instrument through which an accused person is informed, with clarity of the allegations he is called upon to answer. Therefore, any amendment or substitution must thus be undertaken in strict conformity with the law, 6 failing which both the clarity of the charge and the accused's fundamental right to a fair trial are imperilled. The irregularity is further compounded by the fact that the trial magistrate did not record whether the purported substituted charge was formally admitted into the record of the court. In Justine Baruti @ Zorlos v. The Director of Public Prosecutions (DPP) (Criminal Appeal No. 501 of 2019) [2023] TZCA 17736 (6 October 2023, TanzLII), the Court confronted a similar situation and held that upon receipt of a charge, it must be evident, either from the record or from the charge itself, that the trial magistrate has formally admitted it. Similarly, in Marekano Ramadhani v. Republic, Criminal Appeal No. 202 of 2013 (unreported), the Court stated: "Framing o f a charge should not be taken lightly, we think it is imperative for the prosecution to carefully frame up a charge in accordance with the law. It becomes even more vital to do so where an accused is faced with a grave offence attracting a long prison sentence." Worse still, the record of appeal discloses a glaring and material inconsistency as regards the date of commission of the offence, a matter that goes to the very foundation of the charge. We agree with the learned State Attorney that the date of commission of the alleged offence is stated as 2n d May, 2022. Indeed, both the trial court and the High Court, in their respective judgments, made reference to that date. However, the prosecution witnesses were categorical that the incident occurred on 9th May, 2022. That divergence is neither trivia! nor curable. It raises a fundamental question as to whether the purported substituted charge was ever properly received, read over, explained to the appellant, and duly endorsed by the trial court as intimated above. In view of the foregoing, we are constrained to hold that, in the absence of formal admission of the purported substituted charge, any subsequent proceedings founded upon a defective charge are irregular. It follows that both the substantive charge and the purported substituted charge were incurably defective, the requisite legal procedure for amendment or substitution having not been complied with. The inevitable consequence is that the trial was conducted on the basis of aninvalid charge, thereby rendering the entire proceedings a nullity. In the result, we have no option but to invoke the provisions of section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 [R.E. 2023], to revise and nullify the proceedings of the trial court and first appellate 8 court, quash the conviction and set aside the sentence imposed on the appellant. Consequently, we order for the immediate release of the appellant from jail if he is not otherwise detained for some other lawful cause. 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. COURT OF APPEAL