Harold Gamalieli @ Mkaro vs Republic (Criminal Appeal No. 432 of 2023) [2026] TZCA 249 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAMBALI, J.A., MAKUNGU J.A. And MGEYEKWA, J.A.^ CRIMINAL APPEAL NO. 432 OF 2023 HAROLD GAMALIELI @ MKARO ..................................................... APPELLANT VERSUS THE REPUBLIC............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Matuma, J.^ ) Dated the 28th day of April, 2023 in Criminal Appeal No. 90 of 2022 JUDGMENT OF THE COURT 24th Feb. & 5th March,2026 WAMBALI, J.A.: The Court of Resident Magistrate of Shinyanga acquitted the appellant, Harold Gamalieli @ Mkaro of the offence of attempt to commit unnatural offence contrary to section 155 of the Penal Code. The prosecution had through the particulars of the offence alleged that, on 12th August, 2022 at Makedonia KKKT area within Shinyanga Municipality in Shinyanga Region, the appellant attempted to have carnal knowledge of a boy (name withheld) aged 8 years old against the order of nature. We shall conveniently refer the boy as a victim. The appellant denied the allegation. During the trial, the prosecution relied on the evidence of eight witnesses and Police Form No. 3 which was admitted in evidence as exhibit PI. The appellant was the sole witness in his defence. Having evaluated the evidence of the prosecution and the defence, the trial Senior Resident Magistrate who presided over Criminal Case No. 13 of 2022 concluded that the prosecution had failed to prove the case beyond reasonable doubt. Hence, she acquitted the appellant of the charge preferred against him as intimated above. Considering the nature of the judgment we intend to deliver, we do not deem it appropriate, to narrate the evidence of the parties at the trial court and its re-evaluation that followed at the first appellate court. It is apparent that as the prosecution was dissatisfied with the acquittal of the appellant by the trial court, the Director of Public Prosecutions (the DPP) appealed to the High Court in Criminal Appeal No 432 of 2023. For purpose of this judgment and to appreciate the deliberations which will came to light later, we note that the petition of appeal contained the following grounds: "1. The tria l m agistrate erred in iaw and fact by giving contradictory findings in evaluating evidence thereby reached an erroneous decision. 2. The tria l m agistrate erred in law and fact when he failed to consider the evidence adduced by other prosecution witnesses in assessing the credibility o f the victim. 3. The tria l m agistrate erred in law and fact by im proper findings particularly when she added the word "anus" which was never pronounced in the evidence o f the victim. 4. That ■ since the tria l m agistrate does not dispute the absence o fpenetration and since the accused could not shake the prosecution case, it was wrong to rule that the charge against the accused was not proved beyond the required standard." The first appellate judge heard the parties' submissions in respect of the first and third grounds of appeal together and the second ground of appeal separately. The fourth ground of appeal was dropped by the DPP. It is noteworthy that, the first appellate judge considered at length the contending submissions of the counsel for the parties in respect of the first and third grounds, and in the course of the judgment, he remarked as follows: "Such insertion o f the term "anus" by the tria l m agistrate resulted into a m isleading defence o f the respondent who was referring to the victim 's evidence contrary to the real evidence o f the victim himself. As a resultm , the m isleading defence prejudiced the m ind o f the tria l m agistrate by treating the contentions o f the respondent as the evidence o f the victim and therefore reaching the conclusion which is against the evidence on record..." Having made that remark, the first appellate judge stated thus: "Z/7 that respect I agree with the learned State Attorney that the tria l m agistrate introduced into her finding extraneous m atters which affected her findings and therefore such findings cannot stand for being prejudicial to justice which require ju d icia l officers in composing judgm ents to point out points o f determ ination, the decision thereon and the reason for the decision, section 312 (1) o f the CPA supra as rightly cited by the learned State Attorney." After the respective finding, the first appellate judge quashed the trial court's judgm ent on account that it occasioned prejudice to the rights of the parties. Particularly, he stated: 7 therefore quash the judgm ent o f the tria l court for having been composed out o f context and against the charge and evidence on the record the act which prejudiced the parties rights to have the m atter determ ined within the context o f the charge, evidence and the records beforehand. My findings supra are in accordance to the guiding principle in the case o f Omari Khaifan v. The Republic ; Crim inal Appeal No. 107 o f 2015 whereas the Court o f Appeal having found that both sides o f the case were prejudiced by the om ission o f the tria l court to give adequate appreciations on the evidence adduced and non-compliance to the law quashed the findings o f the trial court. The anom aly in that case was affecting the entire proceedings but in the instant m atter the parties are not at issue on the proceedings o f the tria l court. In that respect such proceedings remain intact." Having made that conclusion, the first appellate judge considered the way forward. In this regard, he stated that he was convinced that the proposal by the learned State Attorney for the DPP to re-compose a new judgment on the available proceedings of the trial court was legally sound. His stand was further enforced by the failure by the counsel for the appellant to state anything regarding the suggestion. Indeed, he stated further that, the stance is in accordance with the guiding procedural rule to the effect that: "The first appellate court has jurisdiction to step into the shoes o f the tria l court and do what ought to have been done. For purpose o f this case to compose the judgm ent in accordance with the proceedings on record . " As it were, having reached the above stand, the first appellate judge embarked on duty to re-compose the judgment. In the process, he substantially dealt with the arguments of the parties for and against the second ground of appeal intimated above by evaluating the evidence of the parties on the record. He also considered whether the prosecution case was proved beyond reasonable doubt. In the end, he found the appellant guilty of the offence of attempt to comment unnatural offence and convicted him accordingly. Subsequently, he sentenced the appellant to twenty years imprisonment. We shall revert to consider this matter later. The conviction and the sentence of the appellant by the first appellate court prompted the instant appeal to the Court. The memorandum of appeal placed before us contains six grounds of appeal challenging the decision of the first appellate court. However, we do not intend to reproduce the respective grounds of appeal for the reason to come to light herein. Before we invited for the parties to submit on the grounds of appeal, having closely examined the judgment of the first appellate court, we had a question to ponder. Particularly, we wondered whether, having found that the parties were prejudiced by the judgment of the trial court for introducing extraneous matters not borne from the evidence on the record, and subsequently quashed it; it was proper for the first appellate judge to compose what he called a fresh judgment on the basis of the proceedings of the trial court which remained intact. As this was not among the grounds of appeal, we required counsel for the parties to respond to the query. Mr. Charles Budede Kiteja, the learned advocate who appeared for the appellant, submitted that though the matter was not part of the complaint of the appellant, the action taken by the first appellate judge was irregular. He explained that after the first appellate judge had quashed the judgment of the trial court for being prejudicial to the parties, he was required to remit the file to the trial court for composing a fresh judgment in accordance with the law. He argued that, it was therefore not proper for the first appellate judge to purportedly step into the shoes of the trial court to re-compose the judgment. He emphasized that the mandate of the High Court concerning an appeal by the DPP on acquittal is guided by the provisions of section 404 of the Criminal Procedure Act, Cap. 20 (the CPA). The learned advocate submitted further that the respective provisions empowers the first appellate court to, among others, reverse the findings of the trial court and convict the respondent of the offence which he could have been convicted by the trial court. However, he stated, that would only happen where the judgment of the trial court being considered is intact. Thus, in his opinion the re-evaluation of evidence made against the findings of the trial court was not justifiable in the absence of the trial court's judgment. On the contrary, he argued, in the case at hand, after the judgment of the trial court had been quashed, there was nothing upon which the first appellate judge would have re evaluated the evidence on the record against the finding of the trial magistrate based on the complaints of the DPP raised in the appeal and at the same time re-compose the judgment. In the circumstances, Mr. Kiteja argued that, the respective part of the judgment of the first appellate court which proceeded after the quashing of the judgment of the trial court be nullified followed by quashing the conviction of the appellant and setting aside the sentence of imprisonment. Finally, he urged the Court to direct that the file be remitted to the trial court for composing a fresh judgment before the same magistrate who tried the case. In reply, Ms. Mwamini Fyeregete, learned Senior State Attorney, who appeared for the respondent the DPP, readily agreed with the submissions of the appellant's counsel regarding the propriety of the first appellate judge to re-compose the judgment of the trial court and the fate of the re-composed judgment. However, she differed with the appellant's counsel proposal that the same magistrate should compose the judgment 8 afresh. In her opinion, justice will be done if another magistrate is directed to re- compose the judgment. There is no doubt that the appeal by the DPP, at the High Court was against an acquittal of the appellant by the trial court and thus, it falls under section 400 of the CPA. In this regard, the power of the High Court in determining such an appeal is regulated by the provisions of section 404 of the CPA which provides: "S. 404. A t the hearing o f an appeal under section 400, the Director o f Public Prosecutions may address the court in support o f particulars set out in the petition o f appeal and the respondent or his advocate may then address the court and thereafter the court may invite the D irector o f Public Prosecutions to reply upon any m atter o f law or fact raised by the respondent or his advocate and the court may then, if it considers there is no sufficient ground for interfering, dism iss the appeal or may- (a) in an appeal from acquittal - (i) reverse the finding, convict the respondent o f the offence o f which he could have been convicted by the subordinate court and either proceed to sentence him or rem it the case to the subordinate court for passing the sentence; (ii) order the respondent to be tried by a court o f com petentjurisdiction; or (Hi) direct the subordinate court to hold com m ittal proceedings; (b) In an appeal against sentence, increase or reduce the sentence or alter the nature o f the sentence; or (c) In an appeal from any other order alter or reverse such order and, in any case, may make amendment or any consequential or incidental order that may appearju st and proper." From the reproduced provisions, the action which may be taken by the High Court after hearing the parties to the appeal by the DPP are clearly indicated in paragraphs (a) (i) (ii) and (iii) of section 404 of the CPA. It is apparent that on such appeal, the High Court may reverse the finding of the trial court regarding acquittal and substitute thereof with conviction upon thorough re-evaluation or re-appraisal of the evidence on the record. The High Court may also sentence the respondent or remit the case to the subordinate court for passing the sentence. In this regard, where there is a complaint by the DPP, as it was in the stated appeal, on the failure by the trial court to evaluate the evidence in relation to the record of proceedings which leads to a wrong conclusion, the High Court (first appellate court) is empowered to step into the shoes of the trial court and thereby re- evaluate the evidence and come to its 10 finding and conclusion. This is so because, it is settled that the first appeal is in a form of re-hearing. For this stance, see among other decisions of the Court, Hassan Mzee Mfaume v. The Republic [1981] T.L.R. 167. Particularly, it was held: "A judge in the first appeal should re-appraise the evidence because the appeal before him is, in effect ■ a rehearing o f the case, and that in the course o f doing so he should set out or indicate the ground for his decision." Moreover, the High Court may also upon re-evaluation of the evidence confirm the findings of the trial court and dismiss the appeal. However, for the High Court to perform such task, the impugned judgment of the trial court must be intact. This is because, the re-evaluation of the evidence must take into considerations, among others, the findings of the trial court being contested by the appellant (the DPP). Basically, the thrust of the complaint in such appeal is that the respective finding of the trial court was reached under misapprehension of the evidence, among others, leading to a wrong conclusion. In the case at hand, we have no hesitation to state that, the first appellate judge could not, with respect, consider and re-evaluate the evidence in relation to the complaints of the DPP in the second ground of appeal in the absence of the judgment of the trial court which he had quashed in the course of the judgment while considering and determining the first and third grounds. Besides, as the first appellate judge had ultimately found that the judgment of the trial court prejudiced the parties for introducing extraneous matters not apparent in the evidence on the record; and since there is no appeal against that finding before the Court, the position remains that the first and third grounds of appeal were upheld. In essence, that finding which was followed by quashing the trial court's judgment disposed of the appeal. Therefore, after quashing the respective trial court's judgment, there was no decision upon which the first appellate judge would have determined the second ground of appeal based on the complaint of the DPP that the trial magistrate had failed to consider properly the evidence of other prosecution witnesses. In this regard, the first appellate judge was bound to stop at the stage where he quashed the judgment and thereby remit the file to the trial court to compose a fresh judgment in accordance with the evidence on the record. In the circumstances, we hold that, the action taken by the first appellate judge to re-composed the judgment was not legally sound. 12 Basically, he had no power to step into the shoes of the trial court to re compose its judgment. We must emphasize that, the power to re-evaluate the evidence and making findings which may be contrary to the finding of the trial court does not mean re-composing the judgment of the respective court. On the contrary, the judgment given upon determination of the appeal by the DPP under section 404 of the CPA remains that of the High Court, whether the respective findings are reversed or confirmed. The first appellate judge could not therefore purportedly step into the shoes of the trial court to compose a fresh judgment. From the foregoing, we agree with the learned counsel for the parties that, the respective part of the judgment of the first appellate court that followed after the first and third grounds of appeal were determined in favour of the DPP and thereby the judgment of the trial court was quashed is a nullity. To this end, we invoke provisions of section 6 (2) of the Appellate Jurisdiction Act, Cap 141, to revise and nullify the respective part of the judgment, quash the conviction and set aside the sentence of imprisonment imposed on the appellant. 13 Consequently, we substitute thereof with an order that the file in Criminal Case No. 13 of 2022 be remitted to the Court of Resident Magistrate of Shinyanga for composing of a fresh judgment immediately in accordance with the law before another magistrate. For avoidance of doubt, pending the composition of a fresh judgment, the appellant shall remain on bail unless decided otherwise by the trial court which granted the respective bail. DATED at SHINYANGA this 4th day of March, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 5th day of March, 2026 in the presence of Mr. Charles Budede Kiteja, learned counsel for the Appellant, Mr. Louis Boniface, 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. 14