Ibrahim Bakari @ Kapama vs Republic (Criminal Appeal No. 82 of 2023) [2025] TZCA 1079 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM; GALEBA, J.A.. MGEYEKWA. 3.A. And MLACHA. J.A.^ CRIMINAL APPEAL NO. 82 of 2023 IBRAHIM BAKARI @ KAPAMA ............................................. APPELLANT VERSUS THE REPUBLIC................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Tabora at Tabora) (Kato. PRM, Ext Jur.^ dated the 10th day of October, 2022 in Criminal Session Case No. 02 of 2021 JUDGMENT OF THE COURT 30th September & 13th October, 2025 MLACHA, J.A.: The appellant, Ibrahim Bakari @ Kapama was charged of murder contrary to section 196 of the Penal Code, Cap 16 R.E. 2002 at the Resident Magistrates Court of Tabora at Tabora before a Resident Magistrate with extended jurisdiction. It was alleged that on 2/8/2019 during night hours, at Chabutwa area in Sikonge District, Tabora Region, he murdered Leokadia Benjamin (the deceased). He was found guilty, convicted and sentenced to the mandatory sentence of death by hanging. Aggrieved, he has preferred an appeal before the Court challenging both the conviction and sentence.

Brierly stated, the facts of the case can be presented as follows: Fatuma Rajabu (PW3), the ward Executive Officer of Chabutwa ward, was at home on 2/8/2019 during early night hours when she received a call from one Paulo who informed her that there was a woman killed in the village. She rushed to the scene of crime and found Leokadia Benjamin (the deceased) on the ground lifeless. She had a cut wound on the neck caused by a bush knife. She notified the police who came in the morning with doctor Andrew Asantiel Elias (PW.5) who examined the body of the deceased and released the body for burial. Meanwhile PW3 received information that the appellant was the suspect and ordered his arrest. On being searched, he was found with a bush knife alleged to have been used in the commission of the crime. He was sent to the police station where he recorded his cautioned statement before G.7950 DC Mwalimu (PW6). He was later sent to Amando Kasian Nyami (PW1), a Resident Magistrate at Sikonge Primary Court, who recorded his extra judicial statement. The postmortem examination report prepared by PW5 revealed that the cause of death was excessive external bleeding due to multiple cut wounds.

The appellant denied to commit the crime. His defence was that, he was arrested on 9/8/2019 as he was coming from Mkeki village for no apparent reason. He was sent to the police station where he was tortured and forced to confess that he committed the crime. He accepted making the confession before the police, but denied to record the extra judicial statement before the magistrate. The defence of the appellant was rejected by the trial magistrate who was convinced by the prosecution evidence hence the conviction and sentence as alluded above. Aggrieved, the appellant has lodged an appeal before the Court with three grounds. For reasons which will be apparent soon, we are not going to reproduce the grounds of appeal. The appellant was represented by M r. Kelvin Kayaga, learned advocate whereas the respondent Republic was represented by Ms. Grace Lwila, learned Senior State Attorney who teamed up with Ms. Eva Msandi and Mr. Salyungu Kibinza, both learned State Attorneys. At the outset, Mr. Kayaga after consultation with the appellant and with leave of the Court abandoned the grounds of appeal and invited the Court to consider a point of law apparent on the face of the record of appeal which he coached to read as follows:

'That, the trial Resident Magistrate with Extended Jurisdiction had no jurisdiction to try the case." Amplifying, the learned advocate referred the Court to page 39 of the record of appeal where there is the transfer order of the High Court issued by Hon. Amour S. Khamis, Judge, dated 27/1/2021 transferring the case to the RM's Court Tabora to be heard by Hon. Hassan Mohamed Momba, SRM with extended jurisdiction. He submitted that Hon. Momba SRM took the plea and preliminary hearing but did not hear the case. The case was transferred again on 20/7/2022 to Hon. J. A. Kato, SRM with extended jurisdiction, as appearing at page 46 of the record of appeal, who conducted the hearing up to the end. No reasons were assigned for the transfer. M r. Kayaga contended that, assigning the case to another magistrate without assigning reasons offended section 274(1) of the Criminal Procedure Act (the CPA). He referred the Court to our recent decision in Twaha Ridhiwani Amimu v. R [2025] TZCA 510 where we stated that this type of assignment is wrong and cannot vest jurisdiction to the new magistrate. He contended further that, failure of the first magistrate to finish the case, made the proceedings before the second magistrate illegal. He invited the Court to nullify the

proceedings which were conducted by Hon. Kato, SRM and the resultant judgment. The Court should also quash the conviction and set aside the sentence imposed to the appellant. As to the way forward, M r. Kayaga submitted that, ordinarily the Court can order a retrial, but that order is not desirable in this case because the evidence on record is weak and has gaps which can be filled by the prosecution against the interest of the appellant. Amplifying, he contended that the evidence on record is based on weak circumstantial evidence and confessions which were admitted contrary to the law. He submitted that no one saw the appellant committing the crime who was arrested merely because he was found with a bush knife suspected to be used in the commission of the crime. He went on to submit that the cautioned statement and the extra judicial statements were of no use because they were objected during trial on grounds of torture but the magistrate did not conduct an inquiry. He challenged the reasoning of the magistrate appearing at page 79 of the record that, "If the defence side is claiming that the accused was tortured, threatened and the like, it is upon them to prove it if the accused will be found with a case on defence hearing/' He added further that, the extra judicial statement was not read after

admission. He cited our decision in Emmanuel Sospeter v. R (2025) TZCA 489 to support her stance that exhibits must be read after admission. He urged the Court to allow the appeal and set the appellant free. Mr. Kibinza was at one with M r. Kayaga. He agreed that, there were defects in the transfer order making proceedings before Hon. Kato, SRM illegal. He also agreed that both the cautioned statement and the extra judicial statement have defects rendering them useless. As to the way forward, like M r. Kayaga, he urged the Court to nullify the proceedings, quash the conviction and set the appellant free. On our part, we have read the record and considered the submissions of the parties. We think this matter should not detain us because we have a plathora of authorities on the procedure of transferring cases from the High Court to the Court of the Resident Magistrate to be tried by a Resident Magistrate with extended jurisdiction. See Twaha Ridhiwani Aminu (Supra) Juma Lyamwiwe vs Republic, Criminal Appeal No. 42 of 2021, Ndaso Yohana @ Kibyala vs. Republic, Criminal Appeal No. 41 Of 2007 and Musa Njile Masanilo & Others v. The Republic, Consolidated

Criminal Appeals Nos. 160, 161 and 166 of 2022 (unreported) to mention but a few. Transfer of a criminal cases from the High Court to the RM's Court to be heard by a Resident Magistrate with extended jurisdiction, is regulated by section 274(1) of the CPA which reads as follows: "274 (1) 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) o f section 179 [Emphasis added] Section 274 (1) makes reference to section 179 of the CPA which provides the source of the jurisdiction. A Resident Magistrate is given extended jurisdiction through an appointment of the Minister responsible for legal affairs. The law gives the Minister mandate to appoint such magistrates after consultation with the Chief Justice and the Attorney General. By the appointment of the Minister, a Resident Magistrate is given jurisdiction to hear cases which could otherwise be heard by the 7

High Court. His decision is like that of the Judge of the High Court and an appeal from his decision lies to the Court of Appeal. But the appointment of the Minister does not give the magistrate an automatic power to hear cases. He must be assigned to hear the case by the Judge In-Charge of the High Court zone where the RM's Court is situated. The assignment is done under section 274 (1) of the CPA. This provision was interpreted in several decision of the Court including our recent decision in Twaha Ramadhani Aminu (supra), where it was stated as follows: "The dear wording o f section 256A (1) (now section 274 (1)) o f the CPA, it is dear that it mandates the Judge In - charge to transfer the case for plea and trial. ... we must however, add here that ; in the event o f the magistrate with extended jurisdiction to whom the case is transferred\ is for justifiable reasons, unable to take the plea 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 m agistrate with Extended Jurisdiction for him to take the piea and try the case as the law requires. Communication (the letter) to that effect must

be placed in the record to maintain transparency ... Transfer o f a case from the High Court to the Resident Magistrate with extended jurisdiction is a serious matter and should not be lightly treated for it vests jurisdiction to the Magistrate named in the transfer order to take plea and try the case which is otherwise triable by the High Court ... proceedings, judgements and orders made in violation o f the provision o f section 256A (1) o f the CPA are a nullity on account o f the case not having effectively moved from the High Court to the Resident Magistrate's court to be heard by a resident magistrate with extended jurisdiction or being handled by a magistrate whom the case is not properly transferred." [Emphasis Added]. The above excerpt is to the effect that cases do not move to the RM's Court at whims. They go by an assignment of the Judge In charge to a specific magistrate named in the order of assignment who should take both the plea and trial. And that, where for some reason, the magistrate fails to finish the case, a communication must be made to the Judge In-charge through a letter stating the reasons and 9

returning the file to him for a second assignment. That done, the Judge In-charge in his discretion, may make a second assignment. Failure to follow this procedure renders the proceedings and orders made by the second magistrate a nullity. The follow up question now is whether the procedure was followed in this case. There is no doubt that both Hon. Momba SRM and Hon. Kato SRM had extended jurisdiction. Amour S. Khamis Judge, assigned the case to Hon. Momba SRM to take the plea and try the case but the record does not show whether he made the assignment as the Judge In-charge or not. Hon. Momba SRM took the plea but did not conduct the trial. His last order dated 6/7/2021 appearing at page 44 of the record adjourned the case to the next convenient session of the court for hearing, and remanded the accused person (now appellant) till such time. The file was at rest until when it appeared again in the High Court before A. B. Salema, Judge who made the second transfer order to Hon. Kato SRM. Again, it is not known whether Salema J. was the Judge In-charge or not. Further, the record is silent as to what happened to Hon. Momba SRM and prevented him to hear the case to its finality. It is also not known how the file shifted to the High Court and went back again to the RM's

Court. We think it was important to assign reasons for the transfer, failure of which made the proceedings and the judgment illegal and a nullity. We thus agree with both learned counsel that the proceedings conducted before Hon. Kato SRM and the judgement which followed were illegal and we proceed to nullify them. We also quash the conviction and set aside the sentence imposed on the appellant. As to the way forward, we are in agreement with the learned counsel that a retrial order may not be in the interest of justice in this case because, it will give the prosecution an unfair advantage to fill in the evidential gaps. As intimated by the learned counsel, conviction of the appellant was based on weak circumstantial evidence and problematic confessions. The circumstantial evidence was not water tight because the appellant was merely suspected to have committed the crime because he was found with a bush knife alleged to have been used in the commission of the crime. One Paul who, appeared first at the scene of crime, and who called PW3, was not called as a witness. The extra judicial statement and the cautioned statement were objected on grounds of being procured through torture, but the magistrate did not conduct an inquiry leaving the question for determination during trial contrary to laid down principles and the law. 11

Ordering a retrial will give the prosecution on unfair advantage of filling the gaps and jeopardise justice. That said, we allow the appeal and direct immediate release of the appellant from prison unless he is otherwise held on some other 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. Hassan Kilingo holding brief for Mr. Kelvin Kayaga, 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 Clerk, is hereby