Idd s/o Ismail Siku Tatu vs Republic (Criminal Appeal No. 252 of 2013) [2022] TZCA 844 (6 July 2022)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: NDIKA. J.A .• MWANDAMBO. J.A.• And KENTE, J.A.} CRIMINAL APPEAL NO. 252 OF 2013 IDD S/0 ISMAIL SIKU TATU ............................................... APPELLANT VERSUS THE REPUBLIC ............................................................... RESPONDENT {Appeal from the Judgment of the High Court of Tanzania at Morogoro) 4 th & 6 th July, 2022 NDIKA. J.A.: (Mwaikuqile. J.) Dated the 14 th day of December, 2012 in Criminal Sessions Case No. 59 of 2011 ORDER OF THE COURT The appellant, Idd s/o Ismail Siku Tatu, is appealing against his conviction by the High Court of Tanzania sitting at Morogoro for the murder of Mohamed s/o Yusuph for which he was sentenced to death on 14 th December, 2012. When the appeal was placed before us for hearing on 4 th July, 2022, we noted that it had previously been called on for hearing on two occasions; on 19 th July, 2019 and later on 17 th March, 2020. On both occasions, the appeal could not proceed to hearing on the reason that the record of appeal was incomplete as it did not contain the documents 1

pertaining to the committal and trial proceedings as well as the impugned judgment. The said omitted documents were allegedly lost or misplaced. Accordingly, on the first occasion the Court directed the Director of Public Prosecutions (OPP) to assist the effort by the Deputy Registrar stationed at the Dar es Salaam High Court Registry for reconstruction of the record by tracing the DPP's record of the case. The hearing was, as a result, adjourned. On the second occasion, the Court learnt that no headway had been made as the DPP's record was untraceable. Having heard and considered the submissions of the parties on the matter, the Court took the view that the effort to reconstruct the record had not been exhausted. On that basis, the Court directed the Registrar of the Court to intensify the reconstruction effort by involving all stakeholders. The hearing was, once again, adjourned. The reconstructed record placed before us on 4 th July, 2022 remains deficient; the documents stated earlier are still omitted. We noted on record an affidavit made by Joseph Dieter Luambano, the Deputy Registrar, High Court of Tanzania stationed at the Dar es Salaam Registry, dated 29 th June, 2022 stating, in essence, that an extensive effort for reconstruction of the record was made by three Deputy Registrars of the 2

High Court by involving all stakeholders but that it went unrewarded. The stakeholders involved included the appellant, the Officer in Charge - Ukonga Prison, the Resident r•;iagistn3·:e 1 s Court of Morogoro at Morogoro, the Regional Crimes Officer (RCO) -- Mbrogoro and the DPP's Office. Rather fortuitously, hot-V(:-'(r .. ,Ne learnt from the Registrar of this Court that earlier on 4 th Jul)i/102':{ 1Yi Deputy Registrar, High Court, Dar es Salaam had managed to:<r·ecciv:/'.the original record containing the committal proceedings and···\ .. izhe( · do<.;uments relevant to the trial. However, the trial proceed!nq) as\Y(::H.1s the impugned judgment are still untraced. Submitting on the wa\· i::,r<'·1-i:'./(ton. behalf of the appellant who was also present, Mr. Majura MaQ.·:JU, ::Uii\1;(j counsel, candidly acknowledged . . '~ ,, '·,·· ,•, .. : ;·, )· that the Deputy Registrar; · :=;ff!ti:Nlt claiming that the effort for reconstruction of the rec6fd' v1as-''"0i,hausted was unreliable. He thus prayed that the search for the ios:~ l"::cord be extended. . . :,:,. {--: .. :•. -:,·;;··•·: . . . .... For the respondent~ · i\fr :· t;·1:}nes . Tesha, learned Senior State Attorney, who was accompafi1<:d :t/Y:1:J1i: Rachel Balilemwa, also learned Senior State Attorney, was atbnc{;.t:J?n Mr. Magafu. On our part, we agree with the learned counsel that, in view of the unexpected but welcome retrieval of the original record, the deposition 3

,. by the Deputy Registrar in his affidavlt that the reconstruction effort was attempted and exhausted is rendered unreliable. Since as the matters stand what remains missing are the trial proceedings and the impugned judgment, we think it is necessary that the effort to reconstruct the record should extend but not limited to searching for and retrieval of information from the computers that werw ~sed in processing and storing the proceedings of the High Court. We, therefore, direct the Registrar of the Court to enlist the assistance of the High Court's ICT Department to carry out the exercise as soon as possible. In the meantime, we adjourn the hearing to a date to be fixed by the Registrar of the Court. It is so ordered. DATED at DAR ES SALAAM this 6 th day of July, 2022. G. A. M. NDIKA JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL J.E. OVO DEPUTY REGISTRAR COURT OF APPEAL 4