Kilongozi Hangali vs Republic (Criminal Appeal No. 205 of 2023) [2025] TZCA 1155 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: LILA, J.A.. FIKIRINI J.A. And RUMANYIKA. J.A.T CRIMINAL APPEAL NO. 205 OF 2023 KILONGOZI HANGALI ................................................................. APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate Court Of Manyara at Babati) (Lusewa. PRM. Ext. Jur.^ Dated the 20th day of December, 2022 in Criminal Session No. 121 of 2020 JUDGMENT OF THE COURT 3ffh September & 17th October, 2025 LILA. J.A: Before the Court for hearing, was an appeal by Kilongozi Hangali, the appellant, who was convicted and sentenced to suffer death by hanging meted by a Principal Resident Magistrate with Extended Jurisdiction (B. M. Lusewa, PRM Ext Jur) of the Resident Magistrates7Court of Manyara sitting at Babati upon a conviction of the offence of murder contrary to section 196 of the Penal Code. He was accused of causing the death of one Tsafu Mabiwa on 5/2/2019 at Endagile Village within Babati District and Manyara Region. In proving the charge against the appellant, the prosecution relied on eight (8) witnesses and three exhibits. Conversely, the appellant was the sole defence witness and did not tender any exhibit. In a nutshell, as we do not intend to recite the detailed accounts of the witnesses for a reason to be revealed shortly, the trial court, at the conclusion of the trial, was convinced that the prosecution evidence materially met the threshold of proving the charge to the hilt and that the defence evidence failed to shake the prosecution evidence leading to the aforesaid conviction and sentence. Aggrieved, the appellant immediately sought to challenge the trial court's decision through a six-point substantive memorandum of appeal. Subsequently, having been assigned brief to represent the appellant in this appeal, Mr. John Faustin Materu, learned advocate, lodged a supplementary memorandum of appeal comprising of five (5) grounds which he opted to argue in lieu of the former memorandum of appeal. As it turned out, of the five grounds, he was convinced that only ground one (1) of appeal which touched on the trial magistrate's jurisdiction to try the case would adequately dispose the appeal. That complaint was couched thus: "1. That, the learned trial Magistrate with Extended Jurisdiction had no jurisdiction to hear and determine Criminal sessions Case No. 121 o f2020." Mr. John Faustin Materu, learned advocate, as hinted above, represented the appellant at the hearing of the appeal whereas the respondent Republic had the services of Mr. Benedict Kivuma Kapela, learned Senior State Attorney assisted by Ms. Rose Sebastian Kayumbo, learned State Attorney. Exercising his right to begin to address the Court, Mr. Materu was quite brief and focused on the point. He pointed out that the trial Principal Resident Magistrate with Extended Jurisdiction lacked jurisdiction to try the case. While referring to the information of murder which was filed in the High Court on 29/9/2020, he submitted that, at first, A. Shao, Principal Resident Magistrate with Extended Jurisdiction (PRM Ext Jur) mentioned the case and conducted the preliminary hearing (P.H). But, he added, the trial was conducted and the case was determined by M.B. Lusewa, (PRM Ext Jur) from page 50 to 141 of the record of appeal. Submitting on the gist of the appellant's complaint in ground one (1) of appeal, he argued that the record of appeal does not show that there was any transfer order by the High Court for the case to be tried by a Principal Resident Magistrate with Extended Jurisdiction. He, however went further to argue that, upon his perusal of the High Court's original record, he realized that there was a transfer order transferring the case to A. Shao PRM Ext Jur, for plea and trial. But, he argued, it was not clear how the case landed into the hands of Lusewa PRM Ext Jur who tried and determined the case. In expounding the law applicable, he submitted that, as the case was triable by the High Court, there ought to have been a transfer order made under section 256A(1) [now section 274(1)] of the Criminal Procedure Act ( the CPA) to Lusewa (PRM Ext Jur). He argued that, in the absence of such order, it means Lusewa (PRM Ext Jur) lacked the requisite jurisdiction to take plea and try the case. Consequently, he concluded, the proceedings, judgment, conviction and sentence imposed are illegal and he reminded the Court that it has occasionally held the omission to be fatal and incurable and vitiates the proceedings, judgment and orders thereof. They should, he insisted, be nullified. Mr. Materu did not end there. He contended that, legally, the transfer order is made to a specific magistrate not to the Resident Magistrates' Court whereby it may be tried by any magistrate citing the Courts' decisions in the case of Peter Kamanga Mahundi and Another vs Republic, Criminal Appeal No. 1197 of 2023 and George Jailos vs Republic, Criminal Appeal No. 51 of 2015 to underscore that legal position. He also prayed to rely on the Courts' decision in the case of Sefu Snayo vs Republic, Criminal Appeal No. 477 of 2019, supplied by the respondent Republic in the list of authorities. It was his position that Lusewa, (PRM Ext Jur) had no jurisdiction to try the case. He finally urged the Court to invoke the provisions of section 4(2) of the AJA and nullify the proceedings, judgment and sentence meted out by Lusewa, (PRM Ext Jur) and direct that the record be remitted and the plea and trial of the case to proceed before A. Shao, (PRM Ext Jur), if available. Otherwise, he proposed for the record to be remitted to the High Court, if need be, for it to transfer the case to another Resident Magistrate with Extended Jurisdiction according to law for plea and trial. Mr. Kapela entirely agreed with the appellant's counsel that the case was tried by the magistrate to whom the case was not transferred to ( Lusewa, PRM Ext Jur) because it was Hon A. Shayo, PRM Ext Jur whom the case was transferred under section 256A(1) of the CPA now section 274(1) of the CPA R. E. 2023. In cementing his argument, he argued that in terms of the Court's decision in Sefu Snayo vs Republic (supra), in which at page 9 the Court cited its earlier decision in the case of Thomas 5 Gasper Mchamisi vs Republic, Criminal Appeal No. 291 of 2013 which underscored the point that transfer is done to a specific Magistrate with Ext Jur, it is only such magistrate who has jurisdiction to take plea and conduct trial. It cannot be heard by another magistrate with extended jurisdiction unless another fresh transfer is done. He had no qualms with the steps to be taken by the Court as proposed by the learned counsel for the appellant. Since Mr. Kapela travelled on the same toes, Mr. Materu, had no rejoinder submission. From the concurring parties' counsel arguments, to resolve the matter before us, examination of the import of then section 256A(1) of the CPA is paramount. It provides that: "The High Court may direct that the taking o f a plea and the trial o f an accused person committed for 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) of section i/J/^Emphasis added) Section 173 of the CPA provides for the manner a resident magistrate is vested with extended jurisdiction which empowers him/her to hear and determine certain category of cases which are otherwise in 6 the domain of the High Court. In terms of it, it is the Minister responsible for legal affairs, in consultation with the Chief Justice and the Attorney General, by order published in the Gazette who may invest such jurisdiction. The unambiguous interpretation of the two provisions above (section 156A and 173) is that, the High Court is mandated to transfer a case otherwise triable by it to the Resident Magistrates' Court for plea and trial by a resident magistrate whom extended jurisdiction has been vested. That spirit was underscored by the Court in Juma Lyamwiwe vs Republic, Criminal Appeal No. 42 of 2001 (unreported) that: "We also wish to point out that under s. 256A(1) it is envisaged that a Resident Magistrate with Extended Jurisdiction to whom a case has been transferred will take plea and then conduct a trial. And a trial\ no doubt, includes a preliminary hearing..." Secondly and relevant to the instant case, the provisions envisage that the plea and trial shall be conducted by a resident magistrate with extended jurisdiction whom the case is specifically transferred, that is to say, a magistrate specified or named in the transfer order. It is important that a transfer order should point out the name of the Resident Magistrate with extended jurisdiction who will deal with the case. That said, it is obvious that a case is not transferred to the court whereby a Resident 7 Magistrate In-charge may exercise his administrative powers to assign it to any magistrate in the event the one whom a case is transferred to is, for whatever reason, unable to handle it. The cases of Peter Kamanga Mahundi and Another vs Republic, Criminal Appeal No. 1197 of 2023 and George Jailos vs Republic, Criminal Appeal No. 51 of 2015 and Sefu Snayo vs Republic, Criminal Appeal No. 477 of 2019 (all unreported) underscored that legal position. In further underscoring the position, the Court, in Thomas Gasper Mchamisi vs Republic (Supra) citing its earlier decision in Abrahaman Ramadhani @ Chino vs Republic, Criminal Appeal No. 130 of 2013 (unreported), restated that: "From the reading o f Section 256A(1) and 173(1)(a) and (b) o f the Criminal Procedure Act, it is dear that the transfer o f the case from the High Court to the Court o f Resident Magistrate must be directed to a specific magistrate conferred with extended jurisdiction to hear such case, "(emphasis added) The obtaining situation in the instant appeal falls in all fours with the situations discussed in the cited cases. It is, after ascertaining from both the record of appeal and the original record of the case, indeed, clear that while there is on record a transfer order of the case to A. Shao PRM Ext Jur before whom the case was transferred and before whom it was mentioned twice and conducted the preliminary hearing, trial was conducted and determined by Lusewa, PRM Ext Jur. This was quite a violation of the spirit imbedded in the two provisions cited above. That was a fatal irregularity and, on the authorities above, vitiated the trial rendering the proceedings, judgment and sentence meted out by Lusewa, PRM Ext Jur a nullity. In terms of section 256A(1) of the CPA (now section 274(1)), both the plea, preliminary hearing, trial and determination should have been conducted by the same Resident Magistrate with Extended Jurisdiction to whom the case is transferred. We, accordingly hasten to hold that the appellant's plea and trial was improper and conviction and sentence imposed cannot left to stand. In their concurrent views, counsel of the parties invited the Court to invoke its revisionary powers under section 6(2) to nullify the plea, trial, conviction and sentence imposed. The finding arrived at being a result of a complaint raised in the ground of appeal, we need not exercise such powers but we shall exercise appellate powers. Consequent upon the discussed infraction, we allow the appeal, nullify the proceedings, judgment and sentence by Lusema PRM Ext Jur. We also quash the conviction and set aside the sentence meted on the appellant. We hereby direct the record to be remitted to the Resident Magistrate with Extended Jurisdiction whom the case was transferred by the High Court (A. Shao PRM Ext Jur), if practically still available, to proceed with the trial. Otherwise, the record should be remitted to the High Court for it to transfer the case to another Resident Magistrate with Extended Jurisdiction for taking a plea, conducting the trial and determine it afresh. DATED at ARUSHA this 16th day of October, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 17th day of October, 2025 in the presence of Mr. John Faustin Materu, learned counsel for the Appellant, Appellants in person, Mr. Philbert Msuya, learned State Attorney for the respondent and Ms. Jasmin Kazi, Court Clerk; is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 10