Edson Maige @ Nkuba vs Republic (Criminal Appeal No. 502 of 2022) [2025] TZCA 1084 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA ATTABORA (CORAM: GALEBA, J.A., MGEYEKWA. J.A. And MLACHA. J.A.^ CRIMINAL APPEAL NO. 502 OF 2022 EDSON MAIGE @ NKUBA ..................................... ................. APPELLANT VERSUS THE REPUBLIC .................................................................... RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Tabora at Tabora) (Kato. SRM-Ext Jurist dated the 16th day of September, 2022 in Criminal Sessions Case No. 24 of 2021 JUDGMENT OF THE COURT 3(fh September & 13thOctober, 2025 GALEBA, J.A.: Vaileth Emmanuel (the deceased) was the wife of Edson Maige @ Nkuba the appellant. She died an unnatural death on 18th October, 2019, at Bugando Hospital in Mwanza, while receiving treatment of serious injuries which had been inflicted on her neck by using a bush knife earlier on 12th October, 2019. She was attacked while at her home in Loya Village within Uyui District in Tabora Region. According to the prosecution, it was the appellant who attacked the deceased with the mentioned lethal weapon, culminating into his wife's untimely death. He was therefore charged in Criminal Sessions Case No. 24 of 2021

before the Court of a Resident Magistrate of Tabora, Kato SRM with extended jurisdiction (the trial court). Consequent to his trial, the appellant was convicted of the murder and was punished with the mandatory sentence of death by hanging. As he was not satisfied by the decision of the trial court, he lodged this appeal pegging it on a total of four grounds of appeal. Three grounds were in the original memorandum of appeal which was drawn by himself, and one ground was contained in the supplementary memorandum of appeal. The latter memorandum was drawn and lodged by Mr. Kilingo Hassan, learned advocate, who was assigned the appellant's brief. The single ground of appeal by Mr. Hassan was to the effect that: "1. The learned trial magistrate with extended jurisdiction grossly erred to try the case [for which] he had no jurisdiction since [the] transfer order dated 2Cfh July, 2022 from [the] High Court was a nullity ." At the hearing of the appeal, Mr. Hassan was appearing for the appellant, whereas, the respondent Republic had the joint services of Mr. Merito Ukongoji, Mr. Nurudini Mmary and Ms. Aziza Mfinanga, all learned State Attorneys. 2

At the outset Mr. Hassan with consultation of the appellant, abandoned all the grounds of appeal raised in the initial memorandum of appeal and informed us that he would only argue the above quoted ground, for the same was capable of disposing of the appeal. As there was no issue from the other side, we permitted him to submit on the only retained ground. In so doing, the learned counsel contended that, according to available records, on 20th July, 2022, when the case was transferred to the Resident Magistrate's Court of Tabora and assigned to Kato SRM with extended jurisdiction, at the same time, the matter had already been transferred to the same court on 7th May, 2021 and assigned to Hassan Mohamed Momba, SRM with extended jurisdiction. According to him, the subsequent transfer order of 20thJuly, 2022 was inoperative and could not in any way confer any jurisdiction to the RM's court or even to Kato SRM. He therefore concluded that the latter judicial officer had no jurisdiction to try the matter as he did, and that all proceedings presided over by him are a nullity. On this point he referred us to the case of Twaha Ridhiwani Amimu v. R, Criminal Appeal No. 398303 of 2022 (unreported). He prayed that the said proceedings be nullified and Kato SRM's judgment be set aside. 3

Finally, Mr. Hassan submitted that as the evidence that was tendered before Kato SRM was problematic, if a retrial will be ordered, then the prosecution will take advantage of the opportunity to rectify it in order to achieve a conviction of the appellant. He therefore prayed for an acquittal of the appellant by relying on this Court's decision in Musa Njile Masanilo & Others v. R, Consolidated Criminal Appeal Nos. 160, 161 & 166 of 2022 (unreported). In reply, Ms. Mfinanga was at one with Mr. Hassan on the first part of his submissions, but not on the second. Her contention was that the prosecution has always had credible evidence, to hold the appellant accountable, and that the evidence has no gaps to fill, if a trial de novo is ordered. In view of the submissions of learned counsel, two issues arise; first, whether Kato SRM had jurisdiction to preside over the proceedings that led to the appellants' conviction, and; two, if Kato SRM had no jurisdiction, what order should we make, acquittal or retrial. The first issue is straightforward. It is centred on the interpretation of section 256A (1) of the CPA before that statute was

revised in 2023. This is the section upon which the transfer orders were issued: "-(1) 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 extended jurisdiction has been granted under subsection (1) o f section 173." [Emphasis added] On 7th May, 2021 exercising the powers in the above section, the Judge Incharge of the sub registry of the High Court at Tabora, issued the first transfer order in respect of plea taking and trial of the case. That order is found at page 23 of the record of appeal, and it is as follows: 1 Court The Criminal Sessions Case No. 78 o f 2019 is hereby transferred to the RM's Court o f Tabora extended Jurisdiction and is assigned to Hon . Hassan Mohamed Momba, SRM with extended jurisdiction, pursuant to section 256A (1) of the CPA. Sgd Amour S. Khamis JUDGE." [Emphasis added] 5

Acting upon the above order, Momba SRM took the plea and conducted preliminary hearing after which, he adjourned hearing of the case until such time that "the High Court schedules the matter for hearing'. So, Momba SRM ended just at that. On 20th July, 2022 as stated above, the High Court issued another transfer order, this time assigning the matter to Kato SRM. The relevant part of the latter order found at page 30 of the record of appeal, is the following: " "Court: The Criminal Sessions Case No. 24 o f 2021 is hereby transferred to the RM's Court o f Tabora extended Jurisdiction and is assigned to Hon. J. A . Kato, SRM with extended jurisdictionf pursuant to section 256A (1) o f the CPA. Sgd A. B. Salema JUDGE/' [Emphasis added] The law is that, the first order having already transferred the case on 5th July, 2021 to the RM's court and assigned it to Momba SRM, it was erroneous for the High Court to transfer the same matter to the RM's court for the second time and assign it to a different judicial officer without assigning any reasons. Legally therefore, Kato SRM did not have jurisdiction to take any plea or conduct trial of the case whose

substance had already been assigned to Momba SRM. This has consistently been the position of the law as obtaining in this jurisdiction as per this Court's decisions in Juma Lyamwiwe v. R, Criminal Appeal No. 42 of 2001, (unreported) Twaha Ridhiwani Amimu v. R, (supra), Musa Njile Masanilo & Others (supra) and Omary Matonya (supra). Thus, the first issue is answered in the negative, that Kato SRM did not have jurisdiction to entertain the case. Therefore, the proceedings that were presided over by him, including an order convicting the appellant, are hereby nullified. The sentence of death that was imposed to the appellant is also set aside. As for the way forward, which is the next issue for our resolution, we wish to state that we attentively heard the parties arguing for, and against an order for retrial. After a thorough consideration of all the arguments that were advanced by parties, we strongly agree with Ms. Mfinanga that an order for retrial, is a fit order to make, which is an answer to the second issue. Accordingly, we allow the appeal to the above extent, and for avoidance of any misunderstanding, we direct that the information indicting the appellant be placed before the Hon. Judge Incharge of the High Court of Tanzania at Tabora, for his action according to law. In

the interim and pending the appellant's retrial, he shall remain in custody. DATED at TABORA, the 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. Kilingo Hassan learned counsel for the appellant, Ms. Suzan Barnabas assisted by Ms. Aziza mfinanga, both learned State Attorney for the Respondent/Republic and Ms. Janekisa Bukuku, Court