Abel Emmanuel @ Kadoda vs Republic (Criminal Appeal No. 81 of 2023) [2025] TZCA 1082 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA, J.A., MGEYEKWA, J.A.. And MLACHA. J.A.^ CRIMINAL APPEAL NO. 81 OF 2023 ABEL EMMANUEL @ KADODA ............................................... APPELLANT VERSUS THE REPUBLIC........................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Tabora at Tabora) (Kato. PRM - Ext. Jurs.^l dated the 10th day of October, 2022 in Criminal Sessions Case No. 49 of 2021 JUDGMENT OF THE COURT 30th September & 13th October, 2025 MGEYEKWA. J.A. The appellant was charged and convicted by the Resident Magistrate's Court of Tabora (Kato, SRM (Ext. Juris.) in Criminal Sessions Case No. 49 of 2021. The information laid by the prosecution alleged that, on 24th day of September, 2019 during night hours at No. 2 area, Mkola Village, Sikonge District within Tabora Region, the appellant did murder one Dotto Mahona (the deceased). i

The evidence led by the prosecution indicated that on the material night, an intruder entered the deceased's house while armed with a stick and a bush knife. It was alleged that the said intruder turned violent, assaulted the persons who were inside the house, and inflicted fatal injuries upon the deceased. One of the eye witnesses reportedly fled the scene in search of rescue. The matter was subsequently reported to the police. No. G.8151 Detective Corporal Mathias, visited the scene and interviewed individuals who had been present at the scene. From those interactions, it was alleged that the appellant was the person responsible for the fatal assault. On the following day, a medical doctor conducted a post-mortem examination of the deceased's body and prepared a report documenting the cause of death which was admitted as exhibit PI. In his defence, the appellant denied all the allegations. He alleged that on 9th October, 2019, while asleep at his residence, a police officer entered his house by force and arrested him without lawful justification. Upon conclusion of the trial, the learned Senior Resident Magistrate with extended jurisdiction was satisfied that the prosecution had proved its case beyond reasonable doubt. Accordingly, the appellant was

convicted of the offence of murder and sentenced to suffer death by hanging. Aggrieved, the appellant lodged this appeal, initially predicated on eight (8) grounds. However, as will shortly become apparent, we find it unnecessary to reproduce them herein. When the appeal was called on for hearing, the appellant enjoyed the legal representation of Mr. Ally Yusuph Maganga, learned counsel, while the respondent Republic was represented by Mr. Enosh Kigoryo teaming up with Mses. Suzan Barnabas, and Wivina Rwebangira, all learned State Attorneys. Before the appeal was argued on its merits, the learned counsel for the appellant, with leave of the Court, abandoned the original grounds and opted instead to argue a point of law. His submission concerned on the validity of the transfer order assigning the trial to Kato, SRM (Ext Juris). Mr. Maganga contended that the case file, registered as Criminal Sessions Case No. 49 of 2021, was transferred irregularly on multiple occasions. Specifically, he pointed out that on 8th February, 2022, the Judge In-Charge transferred the case to Barthy, SRM (Ext. Juris.), who did not proceed with plea taking or preliminary hearing due to her 3

transfer. Subsequently, on 16th June, 2021, Salema, J. issued a second transfer order for Criminal Sessions Case No. 19 of 2021, assigning the case to Mwakatobe, PRM (Ext. Juris.), who took the plea and conducted the preliminary hearing. Later, on 20thJuly, 2022, Salema, J. transferred the Criminal Sessions Case No. 49 of 2021 to Kato, SRM (Ext. Juris.) for trial. It was his submission that these multiple transfers were procedurally flawed, and the final transfer to Kato, SRM (Ext. Juris.) was improper. He cited section 256A (1) now section 274 (1) of the Criminal Procedure Act (the CPA) to reinforce the principle that once a case has been partly heard, it may not be taken over by another magistrate unless lawful grounds are recorded. To bolster his argument, he relied on the Court's decision in John Frank Magembe @ Katumbili and Another v. Republic, Criminal Appeal No. 565 of 2022 [2025] TZCA 307 (TanzLII), where the Court underscored the strict requirements surrounding the transfer of cases involving Resident Magistrates with extended Jurisdiction. On that account, Mr. Maganga urged the Court to nullify the proceedings presided over and judgment issued by Kato, SRM, quash the conviction and set aside the sentence.

On the way forward, the learned counsel contended that although a retrial may ordinarily be considered appropriate, in this case, the prosecution's evidence was too weak to justify such a course. He raised two evidential concerns. One, the testimony of the sole eye witness (PW2) was interpreted, yet the record is silent as to whether the interpreter was duly sworn in accordance with section 4 (b) of the Oaths and Statutory Declarations Act, Cap. 34 (the OSDA). This, he argued, rendered PW2's evidence inadmissible. Two, Mr. Maganga challenged the reliability of the visual identification of the appellant, noting that although the incident occurred at night, the intensity or source of the light was not stated, nor was any prior description of the assailant furnished. He cited the decision of this Court in Stephano Kasindiko v. Republic, Criminal Appeal No. 115 of 2023 [2025] TZCA 500 (TanzLII) to support his submission. As to the way forward, Mr. Maganga urged us not to order a retrial, warning that it would only enable the prosecution to fill evidentiary gaps. He instead prayed that the Court quash the conviction, set aside the sentence, and order the appellant's release. In response, Ms. Barnabas was in full accord with the submission of the learned counsel in that the transfer to Kato, SRM (Ext. Juris.) was 5

defective, as it contravened section 274 (1) of the CPA. She also relied on John Frank Magembe @ Katumbili (supra) to support her position. As to the way forward, Ms. Barnabas submitted that the proper remedy would not be a retrial because of the glaring weakness in the prosecution's case. She clarified that the record failed to show whether the interpreter was sworn as required, thereby contravening section 4 (b) of the OSDA. She also echoed the concern regarding visual identification, citing the same case of Stepheno Kasindiko (supra), and supported the prayer to nullify the proceedings and release the appellant. Having heard the submissions of the learned counsel, we agree that there was no valid transfer order vesting jurisdiction on Kato, SRM (Ext Juris.). The law relevant to the procedure for the transfer of criminal cases to a Resident Magistrate with extended jurisdiction is section 256A (1), now 274 (1) of the CPA, which reads: "274-(l) The High Court may direct that the taking of 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 extendedjurisdiction has been granted under sub-section (1) o f section 179”. [Emphasis added]

The above provision is unambiguous. The order of transfer must be made to a specific magistrate. The magistrate to whom the matter is transferred must take the plea and conduct the trial. Further, it is explicit in the provision that the same Resident Magistrate must, unless lawfully substituted, proceed to conduct the trial to its conclusion. As rightly submitted by both learned counsel, on 8th February, 2020, the Judge In- Charge transferred Criminal Sessions Case No. 59 of 2020 to Barthy, SRM (Ext. Juris.), who never conducted the plea taking or preliminary hearing due to her transfer. Curiously, on 16th June, 2021, Criminal Sessions Case No. 19 of 2021 was transferred to Mwakatobe, PRM (Ext. Juris.), who took the plea and conducted the preliminary hearing. However, she did not proceed with the trial as required. On 20thJuly, 2022, Criminal Sessions Case No. 49 of 2021 was transferred to Kato, SRM (Ext. Juris.), who conducted the trial. We observe with concern that the above sequence of events amounts to a serious infraction of section 274 (1) of the CPA. First, the record is silent as to any order or reasoned explanation for the reassignment of the case file from Mwakatobe, PRM (Ext. Juris.) to Kato, SRM (Ext. Juris.) contrary to the principles articulated in Mussa Njile @ Masanilo & Others v. Republic, where the Court held that:

"Where the case has been transferred to a resident magistrate with extendedjurisdiction and that magistrate to whom the case is transferred is, for justifiable reasons, unable to take piea and conclude the trial, the Resident Magistrate in Charge should communicate and return the case to the Judge In-Charge for him/her to transfer it to another magistrate with extended jurisdiction for him/her to take plea and try the case in accordance with the law. In that case, we emphasized that communication to that effect should be in writing to maintain transparency. Moreover, the record of appeal reveals that Mwakatobe, PRM (Ext Juris.), had already presided over the plea-taking and preliminary hearing. However, the trial was subsequently conducted by a different magistrate, without any lawful order of transfer on record and without the plea and preliminary hearing being conducted afresh. This procedure was in contravention of the provisions of section 274 (1) of the CPA. In the circumstances, we are at one with the learned counsel that the proceedings before Kato, SRM (Ext. Juris.) were vitiated by procedural impropriety and jurisdictional irregularity. Consequently, we nullify the proceedings and the judgment of Kato, SRM (Ext. Juris.). The conviction is quashed and the sentence imposed upon the appellant is set aside. 8

As to the way forward, the learned counsel urged the Court not to order a retrial, citing fundamental weaknesses in the prosecution's case. We agree. To begin with, the record is silent on whether the interpreter who facilitated the testimony of PW2 was duly sworn, as required under section 4 (b) of the OSDA. That omission alone is sufficient to dispose of this appeal, since it undermines the admissibility of PW2's testimony, who was the sole eye witness in this case. Worse still, the appellant was not properly identified at the scene of the crime. It bears repeating that the correct identification of an accused person is central to the proof of a criminal charge. This Court has, time and again, underscored the need for courts to eliminate the possibility of mistaken identity when reliance is placed on visual identification, particularly in conditions unfavarouble to human sight or visibility such as darkness. In that regard, we are guided by the landmark decision in Waziri Amani v. Republic [1980] T.L.R. 250, in which the Court laid down the guiding principles for evaluating evidence of visual identification. The Court held that: "...evidence o f visual identification, as Courts in East Africa and England have warned in a number of cases, is o f the weakest kind and most 9

unreliable. It follows therefore that no court should act on evidence of visual identification unless all possibilities o f mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight." The Court proceeded to state the following conditions to be taken into account: - "...the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or nighttime; whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused before or not These matters are but a few o f the matters to which the trial Judge should direct his mind before coming to any definite conclusion on the issue of identity. [Emphasis added]. In line with the foregoing principles, it is trite that a witness who alleges to have identified an assailant at the scene of the crime ought to give a detailed description of such assailant to the person to whom he reported the matter to, before such person is arrested. See the case of 10

Sayi Jalucha & Another v. Republic, Criminal Appeal 443 of 2019 [2023] TZCA 117 (TanzLII). In the instant case, the alleged incident occurred at night under unfavourable conditions. PW2 claimed to have identified the appellant by the aid of moonlight and solar light. However, as rightly submitted by both learned counsel, PW2 offered no details as to the nature or intensity of the light, the distance between her and the assailant, or the duration of the encounter. More so, PW2 did not give any description of the appellant to indicate that she positively identified the appellant. In the circumstances, we are satisfied that the visual identification evidence relied upon by the trial court was not watertight and ought to have been subjected to greater scrutiny. Had the learned trial Resident Magistrate with extended jurisdiction undertaken that exercise, he would have arrived at the inevitable conclusion that the evidence on record was insufficient to sustain a conviction. We are accordingly in agreement with the submissions of both learned counsel that the prosecution failed to discharge the burden of proof beyond reasonable doubt. In the ii

circumstances, the point of law articulated by learned counsel for the appellant is, in our considered view, well-founded and deserving of merit. In the upshot, we allow the appeal and direct that the appellant be released from prison forthwith unless otherwise detained therein for some lawful cause. DATED at TABORA this 10th day of October, 2025. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 13th day of October, 2025 in the presence of Mr. Ally Yusuph Maganga, learned advocate for appellant, Ms. Suzan Barnabas and Ms. Aziza Mfinanga all Learned State Attorney for the Respondent/Republic and Ms. Janekisa Bukuku, Court Clerk, is hereby certified^ .a true copy of the original. « - r £]' DEPUTY REGISTRAR ■ * / / COURT OF APPEAL // 12