Mohamed Rajab vs Republic (Criminal Appeal No. 246 of 2023) [2026] TZCA 202 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA, J.A., MAIGE. J.A. And MANSOOR. J J U CRIMINAL APPEAL NO. 246 OF 2023 MOHAMED RAJAB .............................................................................. APPELLANT VERSUS THE REPUBLIC................................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Matuma. 3.) dated the 30th day of May, 2022 in Criminal Session No. 42 of 2017 JUDGMENT OF THE COURT 16th February & 2n d March, 2026 LILA, 3.A.: This is an appeal by the appellant, Mohamed Rajabu against the judgment of the High Court of Tanzania at Shinyanga in Criminal Session Case No. 42 of 2017. The Appellant was convicted of two counts of murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2019] and sentenced to death by hanging. His co-accused, Malangwa S/O Onesmo @ Zacharia, was acquitted hence not a party to this appeal. i We shall not delve to provide the details on the essence of the appeal before the Court as they are not material to the determination of this appeal as shall come to light just a moment. To shed light, however, on what transpired, these facts serves the purpose. The record of appeal bears out that this appeal stems from murder incidents which occurred on the night of 14/5/2016 at Ihale Village within Lake Victoria in Busega District, Simiyu Region. Two persons died. The two deceased persons, Bukelebe Deus and Mayombya Ndakama, were fishermen employed by Franco Katondo @ Sikitiko Bwire (PW5). They were fishing using a boat propelled by a Suzuki make engine with serial number 415577, HP 9.9 and a Yamaha make fuel tank. During their fishing expedition on that material night, those deceased persons, along with two other fishermen namely Makala Raphael and Masalu Budaga, were attacked by thugs on a canoe; they attacked them using paddles on the head causing them to suffer serious injuries. They were then drowned in the lake, leading to death of the appellants by suffocation. The survivors escaped by swimming away, and the attackers fled with the boat's engine and fuel tank, leaving behind their canoe. The incident was reported to Busega Police Station by PW5 on 15/5/2016. The body of Bukelebe Deus which had severe head wounds was recovered in the morning on the lake shore and was identified by PW1 (E. 9187 D/Sgt. Enock) and PW5. The body of Mayombya Ndakama was recovered on 16/5/2016. Their respective post-mortem examination reports were tendered by PW1 and admitted as exhibits PI and P2, respectively confirming that the cause of death was severe head injuries and suffocation due to being drowned. Manhunt of the thugs by the police was mounted resulting to the arrest of the appellant on 15/5/2016 at around 16:00 hours. According to PW3 (G. 5228 D/CPL Daud), to effect his arrest, he overheard some information about a person looking for buyers of a boat engine, he posed to be a buyer and, through telephone communication, he was able to meet that person who was selling the boat engine. Upon meeting, that person who turned out to be the appellant, attempted to flee but was apprehended after a twenty- minutes chase. Investigation was conducted and the appellant with his colleague one Malagwa Onesmo @ Zacharia, were arraigned to answer a charge comprised of two murder. The appellant denied involvement, claiming he was arrested while selling utensils and was tortured to sign a confession statement. Basing on circumstantial evidence and invocation of the doctrine of recent possession, confession leading to discovery and his conduct of attempting to flee from arrest, the trial Judge found the charge proved against the appellant. His co-accused was acquitted. He was aggrieved. Through a memorandum comprising eight grounds of complaints, the appellant seeks this Court to overturn the trial court decision. At the hearing of the appeal, the appellant had the services of Ms. Gloria Lucius Ikanda, learned advocate, whereas Ms. Sophia Fidelis Mgassa, learned Senior State Attorney, and Ms. Nancy Medard Mushumbusi, learned Senior State Attorney, appeared for the respondent Republic. As it is the practice, Ms. Ikanda was first to take the floor and address the Court. She prefaced her submissions by seeking leave of the Court to be allowed to elaborate grounds five (5) and seven (7) of t appeal only and abandon the remaining grounds of appeal in the memorandum of appeal. We shall, however, not reproduce the said grounds five (5) and seven (7) grounds herein following her being granted leave by the Court to argue a new and an alternative ground which we are convinced the appeal turns. It was couched thus: "That, the requirem ents o f section 246 (3) and (4) o f the Crim inal Procedure A ct Cap 20 R. E 2002 [Now section 263(3) and (4) o f the Crim inal Procedure Act, R.E. 2023] was not com plied with rendering the tria l proceedings a n u llity." In elaborating this complaint, Ms. Ikanda was very brief and straight to the point. She referred the Court to page 23 of the record of appeal which constituted the committal proceedings. She submitted that the committal proceedings were not conducted according to the law underpinning the point that they were conducted in violation of the mandatory requirements of section 246(3) and (4) of the Criminal Procedure Act, Cap. 20 of the Revised Edition 2002 (the CPA) which is now section 263(3) and (4) of the CPA of the Revised Edition 2023. She contended that section 246(3, imperatively enjoins the trial magistrate to address the accused of his rights in the words stipulated therein and record his responses but that was not done or in any way explained to the appellant in this case. She went further to argue that even section 246(4) which is an important caution on the appellant (then accused), was not complied with as the same was not addressed to the appellant. For those reasons, she vigorously argued that the conduct of the committal proceedings was flawed and the same should be nullified with the resultant order that the appellant be remitted to the inquiry court for conducting a fresh committal. For the respondent Republic, Ms. Mushumbusi addressed the Court. She was firm that the complained requirements under section 246 of the CPA were duly complied. Even if there are errors, she adamantly argued, the errors were committed by the trial court hence not fatal and the complaint should be dismissed. She upon reflection, however, admitted that the record of appeal does not show that the appellant (then accused) was addressed on his rights under section 246(3) and was also not cautioned as per the requirements of section 246(4) of the CPA. 6 After perusing the record of appeal, we are settled in our minds that the appellant was not addressed on his rights under section 246(3) and also cautioned in terms of section 246(4) of the CPA. The record is silent. On this, the record of appeal is vividly clear and, luckily, the learned brains are at one. The issue for our deliberation is therefore whether such non-compliance or omission is fatal and vitiated the committal proceedings. It is appropriate, for clarity of the basis of our deliberation, at first, to quote the relevant provisions of the law as hereunder: "(3) A fter com plying with the provision o f subsections (1) and (2) the court sh all address the accused person in the follow ing words or words to the like effect: "You have now heard the substance o f the evidence that the prosecution intends to ca ll a t your trial. You may either reserve your defence , which you are at liberty to do, or say anything which you may wish to say relevant to the charge against you. Anything you say w ill be taken down and m ay be used in evidence at your trial. (4) Before the accused person makes any statem ent the court sh all state to him and make him understand clearly that he has nothing to hope from any prom ise o f favour and nothing to fear from any threat which may have been held out to him to induce him to make any adm ission or confession o f his guilt, but that whatsoever he then says m ay be given in evidence on his tria l notw ithstanding the prom ise or th re a t" It is apposite to observe right here that section 246(3) of the CPA gives a right to the accused to comment on what he has heard from the statements of the intended prosecution witnesses but in doing so, he should be aware of the limitation set forth under section 246(4) "that he has nothing to hope from any prom ise o f favour and nothing to fear from any threat which may have been held out to him to induce him to make any adm ission or confession o f his guilt, but that whatsoever he then says may be given in evidence on his tria l notw ithstanding the prom ise or th re a t/'lf left unaware of such right and limitation, an accused may either fail to exercise such right or abuse it at his detriment. The duty imposed on the committing court is crucial. The right of an accused to 8 exercise legal rights has been a subject of our Court's decision in a number of occasions. In Shani Kapinga vs Republic, Criminal Appeal No. 337 of 2007 (unreported), the Court was faced with a complaint that the appellant was denied his right by the trial court's omission to comply with the provisions of section 234(2)(b) of the CPA which, in essence, requires a witness who had already testified to be recalled for further examination after a new charge is substituted. In that case, the trial court did not inform the appellant such legal rights to enable him make an informed decision such as recalling of PW1 to testify afresh or for further cross-examination. After appreciating that then there was no authority on the matter before it, the Court's hands laid on the decision by the High Court (Samatta, J. as he then was) delivered on 17/9/2009 who had dealt with such an issue in R vs Jumanne Mohamed [1986] TLR 231 in which he held that "the court is under a duty to inform the accused o f his rights and find out from him which rights he proposes to exercise" and stressed that "the accused reply should be reflected in the record o f the casd'. The Court then, reflected on the High Court decision at page 234 and stated that: 9 "The failure on the part o f the learned tria l m agistrate to com ply with s. 234(2)(b) o f the A ct in the instant case was, in m y settled opinion , a serious error, capable in law o f vitiating the decision he arrived at, a t the end o f the trial". In approving those statements as good law or legal propositions, the Court in Shani Kapinga vs Republic (supra) observed: "We feel duty bound a t this juncture to state that the Court is not bound to follow decisions o f low er courts. The decision in this case o f JU M A N N E has been cited because it is a so u n d re a so n in g a n d w e a d o p t it . " (Em phasis added) A year later, the Court in the unreported case of Juma Limbu @ Tembo vs Republic, Criminal Appeal No. 168 of 2006, a decision of which was rendered on 6/10/2010, was confronted with a complaint by an appellant that he was denied his right under section 231(1) of the CPA which gives a right to an accused person to be informed by a trial court of what the law provides for him in making the defence and the consequences thereto. That right, in terms of the Court's decision in Alex John vs Republic, Criminal Appeal No. 129 of 2006 (unreported), 10 not only guarantees to an accused person a right to be heard on his own behalf, but also imposes a duty on the trial court to inform him fully of this right. In its conclusion, the Court cemented its earlier position when it pronounced itself, and this is relevant to our case, that: "To avoid a m iscarriage o fju stice in conducting trials, it is im portant for the tria l court to be diligent and to ensure w ithout fail, that an accused is made aware o f a ll his rights at every stage o f the proceedings in conform ity with article 13(6)(a) o f the Constitution o f the United Republic o f Tanzania. I t is th e d u ty o f th e tr ia l c o u rt to do w h at th e la w sa y s m u st b e done, a n d th e sam e to b e re fle c te d in th e p ro ce e d in g s th a t it w as done. As we have seen, the tria l court failed in its obligation to inform the appellant o f the available options for making his defence. H is right on this aspect was violated. T his g ro u n d o f a p p e a l h a s m e rit a n d it s u ffic e s to d isp o se o f th e ap p eal. We gather from the above authorities that, at any stage of the case, where the law gives any right on the accused person, the accused person should be informed about it, be accorded such legal right and he should be left free to choose to either exercise it or not and his responses should be recorded and reflected on the record of the case. This guarantees a fair trial and hence a smooth administration of justice. Failure to do so amounts to unfair trial. This was actually the contention by Ms, Ikanda with whom we agree totally. The rights conferred to the accused persons under sections 246(3) and (4) are no doubt fundamental. The trial court was duty bound to address such rights to the appellant and duly record his responses. As this was not complied with, it was a serious error which vitiates the committal proceedings. The above said, the committal proceedings are hereby declared a nullity. Accordingly, the appellant was not properly committed to the High Court for his trial rendering his trial before the High Court also a nullity. His conviction which emanated from improper committal proceedings is hereby quashed. Similarly, the sentence is also set aside. 12 The appellant and the record be remitted to the committal Court, the District Court of Bariadi, Simiyu Region for it to conduct the committal proceedings in full compliance with the law. In the meantime, the appellant has to remain in remand prison custody while waiting for committal proceedings to be conducted which process, we direct to be expedited. DATED at SHINYANGA this 2n d day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 2n d day of March, 2026 in the presence of Ms. Gloria Ikanda, learned counsel for the Appellant and Ms. Mboneke Ndimubenya, learned State Attorney for the respondent/Republic via virtual Court, and Mr. Leopord Mabugo, Court b f A P Clerk certified as a true copy of the original, o D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 13