Nhandi Dotto & Another vs Republic (Criminal Appeal No. 933 of 2023) [2026] TZCA 200 (3 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. 933 OF 2023 NHANDI DOTTO .................................................................... 1 st APPELLANT EMMANUEL KILALA.............................................................. 2 nd APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Kulita, J.l dated the 15th day of November, 2023 in Criminal Sessions Case No. 60 of 2021 JUDGMENT OF THE COURT 13th February & 3rd March, 2026 MGEYEKWA, 3.A.: The appellants, Nhandi Dotto and Emmanuel Kilala were charged in the High Court of Tanzania at Shinyanga with the offence of murder contrary to section 196 of the Penal Code. The prosecution alleged that on the 3r d July, 2019 at Mahana Street village within Bariadi District in Simiyu Region, the appellants murdered one Kwezi Malongo. The appellants pleaded not guilty to the information. However, after a full trial, the High Court was satisfied that the prosecution had proved its case beyond reasonable doubt. It therefore convicted and sentenced the appellants to suffer death by hanging. Dissatisfied with the decision of the High Court, the appellants appealed to this Court raising six grounds of appeal in the substantive memorandum of appeal. On 9th February, 2026 they lodged a supplementary memorandum of appeal containing eight grounds of appeal. Later on, the counsel who were assigned to represent them filed a joint supplementary memorandum of appeal consisting three grounds of appeal. However, for reasons to be clear shortly herein, we do not intend to recite those grounds of appeal. At the hearing of this appeal, the first appellant was represented by Mr. Gervas Geneya, learned counsel, the second appellant was represented by Mr. Geofrey Tuli while the respondent Republic was represented by Mr. Anisius Kainunura, learned Principal State Attorney. 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. Before the hearing of the appeal began in earnest, the learned counsel, upon consultation with the appellants, intimated that they would abandon the second and third grounds contained in the second suplementary memorandum of appeal. They elected to canvass the first ground challenging the legality of the proceedings before the District Court of Bariadi and the preliminary hearing before the High Court. The ground of appeal is paraphrased as follows: "The learned Trial Judge erred in law and in fact in convicting the appellants for murder without adequately addressing fundamental irregularities in the committal proceedings." Submitting on the sole ground of appeal, Mr. Geneya asserted that the record reveals that, when the committal proceedings commenced before the District Court of Bariadi on 22n dNovember, 2021, no interpreter was provided, notwithstanding the fact that the appellants did not understand the language of the court but only their native language. He added that although the record of appeal indicates that the statements of witnesses and documentary exhibits were read over and explained to the appellants in a language they were said to understand, it is apparent they did not understand Kiswahili. Mr. Geneya also drew the Court's attention to the preliminary hearing conducted on 7th February, 2022 before the High Court, where the learned Judge expressly observed that the appellants were not fluent in Kiswahili and, for that reason, directed that at the trial an interpreter be availed to translate from English into Kiswahili and/or from Kiswahili into Kisukuma and vice versa, to enable them to follow the proceedings. As a result, during the trial an interpreter was available. Placing reliance on section 227 (1) of the Criminal Procedure Act (the CPA), the learned counsel contended that the proceedings which were conducted without the service of an interpreter, were a nullity. In fortification of that submission, he cited the decisions of the Court in Mariko Jiendele v. Republic (Criminal Appeal No. 136 of 2018) [2022] TZCA 463 (22 July 2022, TanzLII) and Said Shabani Malikita v. Republic (Criminal Appeal No.523 of 2020) [2023] TZCA 17302 (5 June 2023, TanzLII), where, in comparable circumstances, the Court nullified the impugned proceedings. He accordingly urged us to nullify the lower courts' proceedings, quash the conviction of the appellants, set aside the sentence and remit the case to the subordinate court for committal proceedings to commence de novo. Mr. Tuli readily supported the submissions advanced by his learned friend and indicated that he had nothing useful to add. In response, Mr. Kainunura stoutly opposed the appeal. At first, he readily conceded that at the preliminary hearing, the learned Judge observed that, although the appellants could speak Kiswahili, they were not fluent, hence he ordered that the trial proceed with the assistance of an interpreter. Nonetheless, he contended that the record of the committal proceedings does not reveal that the appellants ever intimated to the court that they did not understand the language of the court. He emphasized that the charges and documentary materials were read over to them; they indicated that they had nothing to add and appended their signatures to the record. The learned Principal State Attorney further submitted that an interpreter was indeed provided during the trial at the High Court and that any omission at the committal stage, if at all, was curable under section 411 of the CPA. In his view, no prejudice was occasioned to the appellants, and he therefore urged the Court to find the sole ground of appeal devoid of merit and dismiss it. Upon our anxious perusal of the record of appeal and careful consideration of the counsel for the parties rival submissions, it is not disputed that at the committal court, the initial charge was read over to the appellants without the assistance of an interpreter. Subsequently, after the information was filed, on 16th November, 2021, the committal proceedings were conducted, again in the absence of an interpreter. Equally undisputed is the fact that the preliminary hearing was undertaken without the service of an interpreter. It is further not contested that on 7th February, 2022, during the preliminary hearing before the High Court, though the learned Judge conducted the proceedings without the aid of an interpreter for the appellants, he expressly observed at end that the appellants were not fluent in Kiswahili, noting that they intermingled Kisukuma and Kiswahili in their responses. For that reason, he directed that the trial to proceed with the service of an interpreter to translate from English to Kiswahili and from Kiswahili to Kisukuma, and vice versa, to enable the appellants to follow the proceedings with clarity. The learned counsel however, are locking horns on whether the omission to provide an interpreter at the earlier stages occasioned prejudice to the appellants. Our point of departure is section 227 (1) (then 211) of the CPA which governs the use of an interpreter for an accused person who does not understand the language in which evidence is given. The provision stipulates as follows: ”227 (1) Whenever any evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him in open court in a language understood by him ." The above provision is couched in mandatory terms. The said provision was interpreted in Dastan Makwaya and Another v. Republic, Criminal Appeal No. 179 of 2017 (unreported), where the Court stated that: "Section 211 (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 nuii and void . [Emphasis added] The foregoing judicial pronouncement is instructive that at every stage of criminal proceedings, committal proceedings included, as in the present case, once the question of a language barrier on the part of the accused arises, the provision of an interpreter becomes 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). From the submissions of counsel for both parties, there is no dispute that the appellants did not understand Kiswahili. They were arraigned before the District Court of Bariadi on 14th July, 2021, and the charge was read to them without the assistance of an interpreter. Likewise, on 16th November, 2021, committal proceedings were conducted in the absence of an interpreter. The purpose of committal proceedings is, among other things, to enable an accused person to understand the nature of the case against him and the substance of the evidence the prosecution intends to rely upon at the trial. We, therefore agree with the learned counsel for the appellants that the failure to provide an interpreter prejudiced the appellants. It cannot be maintained that they understood the case they were required to answer. We are mindful that section 263 (then 246) (1) to (5) of the CPA unequivocally guarantees an accused person the right to understand the charge or information laid against him, as well as the nature of the evidence he is to face at the trial. The established procedure is that once the committal court receives the information, it must read and explain it to the accused person, together with the substance of the statements of the intended witnesses' evidence and the documentary exhibits upon which the prosecution intends to rely at the trial. In the present appeal, we are alive to Mr. Kainunura's argument that the record of appeal demonstrates that at the committal court, the charge, witness statements and the substance of the documentary exhibits were read over and explained to the appellants in a language purportedly understood by them. However, that does not detract from the undisputed fact that the appellants were not proficient in Kiswahili as it was apparently revealed in the proceedings before the High Court. It was in this regard that the Judge ordered that an interpreter be appointed at the trial. The Court, in several decisions has consistently emphasized that the right to understand the proceedings is not a mere formality but a fundamental safeguard of a fair trial. In Mussa Mwaikunda v. Republic [2006] T.L.R. 387 the Court reiterated the principle stated in Regina v. Henley [2005] NSWCCA 126 quoting Smith J, in R v. Prosser [1958] VR 45 at 48, the minimum standards to be complied with by the court if an accused has to undergo a fair trial were stated thus: "One, to understand the nature o f the charge; t w o to plead to the charge and to exercise the right o f challenge; three, to understand the nature of proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; four, to follow the course of proceedings; five, to understand the substantial effect of any evidence adduced in support o f the prosecution; and six to make a defence or to answer the charge ." [Emphasis added] Going by the above authority and the provisions of section 263 (1) to (5) of the CPA, the position is underscored that an accused person has the right to be made to understand the charge or information laid against him, as well as the nature of the evidence he is to encounter at the hearing. Insofar the appellants did not understand the language of the court it is incontestable that their right to a fair hearing was thereby infringed. In the circumstances, it cannot properly be said that the committal proceedings conducted by the District Court and the preliminary hearing by the High Court were lawfully conducted. In the absence of compliance with these mandatory requirements, the committal proceedings and the preliminary hearing were fundamentally flawed. In Republic v. Elias Michael @ Luhiye and 3 Others, Criminal Revision No. 2 of 2018 (unreported), the Court held that where non-compliance with procedural requirements prejudices the accused, the trial following therefrom is rendered a nullity. See also Juma Ndodi v. Republic (Criminal Appeal No.588 of 2020) [2023] TZCA 17411 (17 July, 2023, TanzLII). For the foregoing reasons, we are satisfied that the record of committal proceedings conducted by the District Court and preliminary hearing proceedings by the High Court leave no doubt that there was total non-compliance with section 263 (1) to (5) of the CPA. Certainly as the trial court proceedings that followed emanated from nullity proceedings, they are equally a nullity. Therefore, we are unable to accede to the proposition by the learned Principal State Attorney that such an omission is curable under section 411 of the CPA. In the circumstances, the way forward is to nullify the proceedings of both courts below and remit the file to the District Court of Bariadi for conducting fresh committal proceedings in complaince with the law. In the result, we invoke the provisions of section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 to revise and nullify the proceedings i i of the District Court of Bariadi dated 16th November, 2021 and High Court in Criminal Sessions Case No. 60 of 2021, quash the convictions and set aside the sentences. Accordingly, we remit the file in Preliminary Inquiry Case No. 13 of 2021 to the committal court for it to conduct committal proceedings afresh before another magistrate, this time with the assistance of an interpreter. We further order that the proceedings be expeditiously conducted. Meanwhile, the appellants should remain in custody. DATED at SHINYANGA this 2n d day of March, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL O. O. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 3r d day of March, 2026 in the presence of Mr. Gervas Geneya, learned counsel for the 1s t Appellant, Mr. Geofry Tuli, learned counsel for the 2n d Appellant and Mr. Abdu Karim Salim, learned State Attorney for the Respondent, via virtual Court, and Mr. Elias Mkwabi,