Jackson Zebadayo Wambura vs Republic (Criminal Appeal No. 839 of 2024) [2025] TZCA 1317 (29 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: WAMBALI. 3.A.. KAIRO, 3.A. And NANGELA, J.A.) CRIMINAL APPEAL NO. 839 OF 2024 JACKSON ZEBADAYO WAMBURA ......... . .... .............................. APPELLANT VERSUS THE REPUBLIC ................................................................ RESPONDENT (Appeal from the decision the Court of Resident Magistrate of Dar es Salaam with Extended Jurisdiction at Kisutu Dar es Salaam) f Rutatinisibwa, PRM, Ext. Jur.) Dated the 25th day of April, 2024 in Extended Jurisdiction Criminal Sessions Case No. 31 of 2014 JDGMENT OF THE COURT 29th September & 29th December, 2025 WAMBALI. J.A.: The appellant, Jackson Zebedayo Wambura was tried and convicted of the offence of murder for contravening the provisions of section 196 of the Penal Code, Cap. 16 by the Court of Resident Magistrate of Dar es Salaam at Kisutu exercising extended jurisdiction presided over by R. I. Rutatinisibwa (PRM, Ext. Jur). Initially, the appellant was charged with the offence of murder together with Charles Wambura Itembe @ Nicholous and Buranga Wangi @ Majohe who are not parties to this appeal. The other two accused were acquitted by the trial court. The information placed before the trial court disclosed through its particulars that the trio stated above, on or about 28th May, 2010 at Kimara Temboni area, within Kinondoni District in Dar es Salaam Region did murder one Amedeus Joseph Kilawila after shooting him outside his house. As the appellant and two other accused denied the allegation and pleaded not guilty, the trial commenced. The prosecution case was supported by the testimonies from Cecilia Amedeus Kilawila (PW1), Sylvester Boniface Massawe (PW2), E. 4128 D/Sgt Ndege (PW3), Selemani Said Mussa (PW4), WP 4707 DCP Mwajuma (PW5), ASP Grace Peter Salia (PW6), E. 7846 DCPL Ernest (PW7) and Dr. Julius Naisi Riwa (PW8). The prosecution also tendered, two identification Parade Registers, sketch map of the scene of crime, Post-Mortem Report and cartridge which were admitted as exhibits P1-P5, respectively. - I Moreover, the statement of PW6 'was tendered during trial within trial and admitted as ID1. Basically, the substance of the prosecution case was that the evidence on the record established without doubt that the appellant and two others murdered the deceased on the material date at Kimara • •i 2 Temboni. The prosecution strongly assercea tnat the appellant and the other two accused were positively identified at the scene of crime by PW1 and PW2, and also during the identification parades which were conducted by PW6 and PW7 as confirmed by exhibits PI and P2. On the other hand, in their respective defences, the appellant and the two others disassociated themselves from the commission of the offence. Particularly, the appellant stated that on 20th July, 2010, he was summoned by a police officer named Mwakyembe at Mazizini Police Post. That, when he responded, he was transferred to Stakishari Police Station and later to Oysterbay Police Station where he was severely beaten on the accusation of committing the murder of Amedeus Joseph Kilawila, the deceased, at Kimara Temboni. Considering the nature of the judgment we intend to give; we do not intend to revisit the detailed facts of the case and the evidence of the parties at the trial on the record. We will however make reference to some facts later whenever necessary. The dissatisfaction of the appellant with the conviction by the trial court prompted him to appeal to the Court, hence this appeal, in which he lodged a memorandum of appeal comprising five grounds of appeal. For the reason to be apparent shortly, we do not also deem it necessary to recite the appellant's grounds of appeal. 3 At the hearing of the appeal, Mr. Nehemiah Geofrey Nkoko, learned advocate who was assigned to represent the appellant appeared and adopted the grounds of appeal which were initially lodged by the appellant. However, considering that he had not managed to file a supplementary memorandum of appeal as required by rule 73 (2) of the Tanzania Court of Appeal Rules, 2009, he sought leave of the Court to add one ground of appeal on the point of law. The respective around concerns the propriety of the transfer of the case for trial to a specific Resident Magistrate with extended jurisdiction from the High Court to the Court of Resident Magistrate of Dar es Salaam at Kisutu. We thus granted the requisite leave as Mr. Faraji Ngukah, learned Senior State Attorney who appeared for the respondent Republic had no objection. Indeed, having scrutinized the irregularity in the respective transfer orders, counsel for the parties and the Court agreed that the the instant appeal can be determined on the basis of that point of law. To this end, we do not intend to dwell on the determination of the substantive grounds of appeal outlined by the appellant in the memorandum of appeal. Submitting in support of the respective ground of appeal, Mr. Nkoko stated that the transfer of the case for trial to a specific Resident Magistrate with Extended Jurisdiction before the Court of Resident Magistrate of Dar es Salaam at Kisutu was clouded with a serious irregularity. He submitted 4 that, apart from the two noted transfer orders to Rusema (PRM, Ext. Jur.) and Rutatinisibwa (PRM, Ext. Jur), there are no formal transfer orders to Shaidi (PRM, Ext. Jur.) and Mkeha (SRM, Ext. Jur). He explained that, the purported transfer order to Shaidi (PRM, Ext. Jur.) is not dated and endorsed by the Judge In charge. He added that as for Mkeha (SRM, Ext. Jur. as he then was) there is no any order at all. On the other hand, he submitted that despite the transfer orders to / Rusema (PRM, Ext. Jur.) and Rutatinisibwa (PRM, Ext. Jur.), there is no any indication in the record of appeal why Rusema did not proceed with the preliminary hearing and the trial. He emphasised that though the case was placed before Shaidi (PRM, Ext. Jur.1 ! and later to Mkeha (SRM, Ext. Jur.), there is no transfer order from the High Court as required by the law. He submitted further that, the confusion regarding the involvement of the two magistrates to whom there is no transfer order specifically directed to them to preside over the case rendered the trial court's proceedings a nullity. He emphasized that in essence, since Shaidi (PRM, Ext. Jur.) conducted the preliminary hearing of the case without the requisite transfer order to him, the formal transfer order to Rusema (PRM, Ext. Jur.) remained intact. In the circumstances, Mr. Nkoko argued that even the purported formal transfer order to Rutatinisibwa (PRM, Ext. Jur.) was invalid as the preliminary hearing was conducted by the magistrate who had no jurisdiction. On the other hand, Mr. Nkoko argued that even if Shaidi (PRM,Ext. Jur.) and Mkeha (SRM, Ext. Jur.) had not handled the matter before the transfer order to Rutatinisibwa, the said transfer would also be invalid. This is because, he explained, though Rutatinisibwa left the trial and Shaidi took over, the former returned again and proceeded with the trial to the end. In his submission, this caused confusion in the proceedings because, there is no any explanation to show who authorized Shaidi (PRM, Ext. Jur.) to take over and the purported subsequent re assignment to Rutatinisibwa (PRM, i 1 Ext. Jur.). In this regard, he maintained that there is serious confusion on how the case was handled before the Court of Resident Magistrate of Dar es Salaam at Kisutu. Moreover, Mr. Nkoko's submitted that, the purported transfer of the case to the trial court offended the provisions of section 256A (currently section 274) of the Criminal Procedure Act, CPA. 20 (the CPA). He argued that the irregularity is fatal and rendered the trial court's proceedings a nullity as it had no requisite jurisdiction to trv the case. Mr. Nkoko, therefore, urged the Court to nullify the trial court's proceedings in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) for being a nullity. 6 On the way forward regarding the effect of the noted irregularity, Mr. Nkoko submitted that considering the factual setting and the evidence on the record of appeal, though an order for a retrial is the usual step to be taken by the Court after nullification of the tainted proceedings, in the circumstances of the case at hand, it will not be in the interest of justice to do so. He argued briefly that the prosecution's witnesses were not credible and that, the admitted exhibits were not procured in accordance with the law. To this end, he emphasized, the prosecution will not manage to prove the case against the appellant and thus a retrial will cause a serious miscarriage of justice. Ultimately, he implored the Court to discharge the appellant. On the adversary side, Mr. Ngukah readily conceded to the appellant's appeal on the strength of the additional ground regarding the point of law on the propriety of the trial court's proceedings. Basically, he agreed with the submissions of Mr. Nkoko that the transfer of the case to the trial court was not in accordance with law rendering it to lack jurisdiction. He submitted further that the irregularity is apparent in the record of appeal to the extent that it occasioned miscarriage of justice. He therefore joined hands with Mr. Nkoko to urge the Court to nullify the tainted trial court's proceedings for being a nullity. On the other hand, Mr. Ngukah equally agreed with Mr. Nkoko that an order for a retrial will occasion injustice on the part of the appellant because there is no sufficient evidence on the record to support the prosecution case. Particularly, he stated that the testimony regarding the identification of the appellant at the scene of crime by PW1 and PW2 is not water tight as required by law. He added that, even the purported identification of the appellant during the identification parade cannot be wholly relied on by the prosecution to substantiate the case because the procedure of conducting the identification parade was faulted. He explained that the requirement prescribed by the Police General Order (PGO) was not squarely complied with by the prosecution side. He maintained that, though the identification parade registers were duly admitted as exhibits PI and P2, they cannot be relied on as the basis of the appellant's conviction because of the failure by the prosecution side to comply with the law. Mr. Ngukah stated further that considering the weaknesses in the evidence of PW1 and PW2 and exhibits PI and P2 on the record, the allegation that the appellant was identified at the scene of crime remained unproved. Thus, in his submission, even if a retrial is ordered, the prosecution will not secure conviction against the appellant because the case will not be proved beyond reasonable doubt as required by the law. To support his stance, he made reference to the decision of the Court in 8 Francis Majaliwa Deus v. The Republic, Criminal Appeal No. 139 of 2009 and Shaban Seif and Another v. The Republic, Criminal Appeal No. 215 of 2015 (both unreported). In the end, Mr. Ngukah implored the Court to allow the appeal on the basis of improper transfer of the case to a specific magistrate by the High Court and set the appellant at liberty. Having heard the concurrent submission of the parties on the propriety of the transfer order by the High Court, we wish to preface our deliberation with the following background facts. According to the record of appeal, it is noteworthy that the appellant's trial was presided over by several resident magistrates with extended jurisdiction at different stages of the proceedings namely, K.T. Rusema (PRM, Ext. Jur.)/ H. A. Shaidi (PRM, Ext. Jur.), P. C. Mkeha (SRM, Ext. Jur.) and R. I. Rutatinisibwa (PRM, Ext. Jur.). It is further apparent that Shaidi (PRM, Ext. Jur) and Rutatinisibwa (PRM, Ext. Jur.) presided over the trial twice. Nonetheless, it is Rutatinisibwa who concluded the trial and convicted the appellant of the offence of murder. Thus, his decision is the subject of the instant appeal. The record of appeal reveals clearly that the case was firstly placed before Rusema (PRM, Ext. Jur.) for plea and preliminary hearing. However, hearing was adjourned because there was apparent conflict of interest among the accused persons as only one defence counsel was assigned to 9 represent them. It was therefore ordered that each accused be assigned a counsel. Surprisingly, when the case was placed before Shaidi (PRM. Ext, Jur.) plea taking and preliminary hearing proceeded as scheduled though only one counsel appeared to represent the accused persons. The reason advanced by the presiding magistrate was that because the disclosure of conflict of interest among the accused was only apparent in the cautioned statement which would not be tendered and admitted on that day, plea taking and preliminary hearing had to proceed to avoid delay of finalizing the trial. The trial was thereafter adjourned to a date to be fixed by the Registrar of the High Court. It is further noteworthy that on 22n d September, 2016, the case was placed for trial before Mkeha (SRM, Ext. Jur.). However, hearing did not proceed though witnesses for the prosecution had been summoned and were in court. The reason for adjournment was based on the same reason that, there was only one counsel who appeared to represent the accused persons despite the previous order made by Rusema (PRM, Ext. Jur.). He thus adjourned the trial to a later date. On 15th May, 2017 the case was placed before Rutatinisibwa (PRM, Ext. Jur.) for trial. Subsequently, hearing proceeded as scheduled until 14th August, 2019 after seven prosecution witnesses had testified in support of the case and was adjourned to the next convinient session. 10 Though there is no transfer order authorising reassignment, on 9th September, 2019, Shaidi (PRM, Ext. Jur.) took over again the trial and informed the parties that the case was reassigned to him because Rutatinisibwa (PRM, Ext. Jur.) had been transferred to another Government Institution. However, the trial was adjourned several times until 29th September, 2022 when it was further adjourned to a date to be communicated by the Deputy Registrar of the High Court. Admittedly, Shaidi (PRM, Ext. Jur.) did not record the testimony of any prosecution witness. More interestingly, on 22n d November, 2022, Rutatinisibwa (PRM, Ext. Jur.) took over again and continued with the trial to the conclusion and delivered the judgment in which he convicted and sentenced the appellant in accordance with the law. However, he acquitted the other two accused as intimated earlier on. Most importantly, the record of appeal does not show whether there was another transfer order to Rutatinisibwa (PRM, Ext. Jur.) after he had left earlier on and Shaidi (PRM, Ext. Jur.) took over. Considering that the record of appeal placed before us does not contain transfer orders to any specific magistrate, we perused the original file in the presence of the parties before hearing of the appeal commenced. We noted from the original file that, the initial transfer order made by the Judge In charge was directed to Rusema (PRM, Ext. Jur.) on 6th November, li 2014. However, as intimated above, the respective magistrate did not conduct the preliminary hearing and the trial. The other transfer order was directed to Rutatinisibwa (PRM, Ext. Jur.) on 10th April, 2017. Nonetheless, there is no formal transfer order to the respective magistrate when he resumed to preside over the trial after Shaidi (PRM, Ext.) had informed the parties that he had taken over the trial because the former trial magistrate had been transferred to another government institution. On the other hand, it is was apparent that there was no transfer order to Shaidi (PRM, Ext. Jur.) and Mkeha (SRM. Ext. Jur.) by the High Court as required by the law. From the exposed situation concerning the involvement of four Resident Magistrates with extended jurisdiction during the trial of the case from the beginning to its finality, it is clear that there was confusion on the transfer of the case to the Court of Resident Magistrate of Dar es Salaam at Kisutu. Basically, though the original file contains transfer orders to both Rusema (PRM, Ext. Jur.) and Rutatinisibwa (PRM, Ext. Jur.), the confusion caused by the involvement of other magistrates as demonstrated above, left intact the initial transfer order to Rusema (PRM, Ext. Jur.) As we have demonstrated above, there is no explanation in the record of appeal how Shaidi (PRM, Ext. Jur.) took over from Rusema (PRM, Ext. Jur.) and conducted preliminary hearing without a formal order of transfer of the case to him by the High Court. In essence, the irregularity rendered the proceedings of the trial court, including those conducted by Rutatinisibwa (PRM. Ext. Jur.) a nullity. Besides, the purported assignment to other magistrate which followed was equally illegal as we have amply demonstrated in our deliberation. More importantly, the purported transfer order to Rutatinisibwa (PRM, Ext. Jur.) was invalid. This is because the transfer order was made after Shaidi (PRM, Ext. Jur.) who had no jurisdiction had conducted the preliminary hearing without an order of transfer to him. The invalidity was further enhanced by the confusion in the takeover between Rutatinisibwa and Shaidi during the trial. In Errey Gasper Asenga v. The Republic, Criminal Appeal No. 238 of 2007 (unreported), it was held, among others that, it is now settled law that in the absence of a formal order by the High Court to the specific Resident Magistrate with extended jurisdiction to try the case, the proceedings before such magistrate and the decision therefrom are a nullity. In the case at hand, it is clear that the provisions of section 256A [currently section 273(1)] of the CPA was not complied with by the High Court. For clarity, the provision states: Section 256A (1) (now section 274) of the CPA provides: 13 "256A (1) The High Court may direct the taking o f piea o fan accusedperson committedfor trial by the High Court, be transferred to, and be conducted by a Resident Magistrate upon whom extended jurisdiction has been granted under subsection (1) ofsection173". In Said Sostheness and Athuman Omary v. The Republic, MZA Criminal Revision No. 1 of 2012 (unreported), the Court stated, among others, that: "... it is worth noting that orders made undersection 256A (1) o f the CPA, are directed to a particular individualmagistrate with extendedjurisdiction, not to the court where there could be more than one such magistrate and then anyone o f them conducts the hearing. Where it happens that the magistrate assigned to conduct such hearing is incapable o f proceeding with the hearing, then a subsequent magistrate has to be specifically assigned by an order issued by the relevant judge o f the High Court..." [See also Theophili Kamali v. The Republic, Criminal Appeal No. 100 of 2012 (unreported)]. It is emphasized that a specific order of transfer cannot be open for a successor magistrate with extended jurisdiction to take over the conduct of the case without a further specific order directed to a specific magistrate in his/her name. In the instant appeal, considering the confusion on the involvement of other magistrates who had no jurisdiction to try the case as we have amply demonstrated above, we are satisfied that the confusion on the transfer of the case to Rutatinisibwa (PRM. Ext. Jur.) was not in accordance with the requirement of the law and rendered the proceedings a nullity. Reverting to the issue on what should be the way forward, we entirely agree with the concurrent submissions by the counsel for the parties that a retrial will not be in the interest of justice. We have carefully scrutinized the factual setting and the evidence in the record of appeal. We agree with the learned counsel for both sides that the identification of the appellant at the scene of the crime was not watertight because the evidence of PW1 and PW2 left doubts which have to be resolved in favour of the appellant. Equally, we agree that the evidence of PW6 and PW7 and exhibits PI and P2 regarding identification of the appellant during identification parade cannot be relied on non-compliance with the requirement of PGO 232 (2). In the circumstances, we are satisfied that a retrial will cause miscarriage of justice because the prosecution will not be able to secure 15 conviction against the appellant. In the event, we allow the appeal on the basis of the addition ground of appeal regarding the improper transfer order by the High Court to the trial magistrate with extended jurisdiction at the Court of Resident Magistrate of Dar es Salaam at Kisutu. In the circumstances, we, in terms of section 4 (2) of the AJA nullify the trial court's proceedings, quash the conviction and set aside the sentence of death imposed on the appellant. Consequently, we order that the appellant be released from custody, unless lawfully held. DATED at DODOMA this 22n d day of December, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA j u s t i c e o f A p p e a l Judgment delivered this 29th day of December, 2025 in the presence of the appellant in person/Unrepresented, Ms. Judith Kyamba, learned counsel for the respondent/Republic via virtual Court and Ms. Jasmin Kazi Court Clerk; is hereby certified as a true copy of the original. C/M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 16