Ntuyi Chobaliko @ Hibalala vs Republic (Criminal Appeal No. 504 of 2022) [2025] TZCA 1060 (10 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. 504 OF 2022 NTUYI CHOBALIKO @ HIBALALA ................................................. APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the Judgment of the Court of Resident Magistrate of Tabora at Tabora) (Momba, SRM - Ext. Jur.^ dated the 12th day of September, 2022 in Criminal Sessions Case No. 04 of 2021 JUDGMENT OF THE COURT 30th September & 10th October, 2025 MGEYEKWA, J,A. This is an appeal against the decision of the Resident Magistrate's Court of Tabora in which Ntuyi Chobaliko @ Hibalala, the appellant, was charged and convicted for murder by the Resident Magistrate's Court of Tabora (Momba, SRM-Ext. Juris.) in Criminal Sessions Case No. 4 of 2021. It was alleged that on 22n d November, 2015 at about 20:58 hrs at Ai village within Urambo District in Tabora Region, he did murder Asha Hussein (the deceased). i

The movement of this case from committal to trial is as follows: At the High Court, the case was registered as Criminal Sessions Case No. 54 of 2020 and was placed under the docket of the Judge In charge. On 27th January, 2021, pursuant to section 256A (1) of the Criminal Procedure Act (the CPA), the Judge In Charge transferred the case file to the court of the Resident Magistrate of Tabora for hearing by Kato, Senior Resident Magistrate with Extended Jurisdiction (SRM-Ext. Juris.). Upon receipt, the case file was re-registered as Criminal Sessions Case No. 4 of 2021. Plea- taking and preliminary hearing were duly conducted before Kato, SRM (Ext. Juris.). Thereafter, the record is silent as to the proceedings that followed the preliminary hearing. However, it is apparent from the record that on 20thJuly, 2022, the matter was once again placed before the High Court. On that date, Salema, J, issued the following order: "This Criminal Session Case No. 4 o f2021 is hereby transferred to the RM's Court at Tabora Extended Jurisdiction and is assigned to Hassan M. Momba, SRM with Extended Jurisdiction pursuant to section 256A (1) of the CPA. Sgd A.B.Saiema JUDGE." Following the above order, the trial resumed and was conducted before Momba, SRM (Ext. Juris.).

Having set out the background on how the matter came to be placed before the Resident Magistrate with extended jurisdiction, we now turn, albeit briefly, to recount the facts as they emerged from the evidence presented by the prosecution at trial. The prosecution led evidence to the effect that the appellant and the deceased were married and residing in Kaliua Town, together with their two children. In October, 2015, the family relocated to Ungunga Village, where they settled within the same compound with the biological mother of the deceased. It was the prosecution's case that on 15th November, 2015, around 17:00 hrs, the deceased visited her neighbour. Shortly thereafter, she escorted the deceased back to her residence. Moments later, an alarm was heard. Villagers responded and proceeded to the scene where they encountered the deceased lying lifeless, with the axe left on her neck. On the following day, the Village Executive Officer (the VEO) of Imbalasiasa Village, identified the deceased and reported the matter to the police. Subsequently, the doctor arrived at the scene and carried out a post mortem examination, the report of which was tendered and admitted as exhibit PI. G. 747 D/C Zephania prepared a sketch map of the scene, which was admitted as exhibit P2. The appellant was apprehended by the police officer in December, 2017 and was charged as indicated earlier on. 3

In his sworn defence, the appellant denied the charge in its entirety and set up an alibi, asserting that at the material time he was at Mahalaja Village, where he was engaged in timber-related business. The trial court, upon hearing both sides, the prosecution and the defence case, was satisfied that the charge was proved against the appellant and found him guilty as charged and sentenced him to suffer death by hanging. In protesting his innocence, the appellant has preferred the present appeal anchored on five (5) grounds. However, for reasons that will shortly become apparent, we shall not delve into reciting them. At the hearing of this appeal, Ms. Stella Thomas Nyakyi, learned counsel represented the appellant whereas the respondent Republic appeared through Mr. Merito Ukongoji, Ms. Ida Rugakingira and Ms. Orester Onesphory, all learned State Attorneys. Before the commencement of the hearing, Ms. Nyakyi sought and was granted leave of the Court to abandon the original grounds of appeal filed by the appellant on 8th April, 2024, as well as the second, third and fourth grounds of the supplementary memorandum of appeal lodged on 29th September, 2025 by the learned counsel.

Arguing the first ground of the supplementary memorandum, Ms. Nyakyi submitted that, ordinarily, cases of murder fall within the exclusive jurisdiction of the High Court. However, she acknowledged that exceptions exist under the law, whereby such cases may be transferred to a Resident Magistrate with extended jurisdiction. In support of her position, she referred the Court to page 43 of the record of appeal, wherein it is recorded that on 27th January, 2021, the Judge In Charge of the High Court transferred the case file to Kato, SRM (Ext Juris.), pursuant to section 256A (1) of CPA now section 274 (1) of the CPA where upon the said magistrate conducted plea taking and preliminary hearing. She further submitted that on 20th July, 2022, Salema, J. ordered a second transfer of the case file to Momba, SRM (Ext Juris.), who thereafter presided over the trial. Ms. Nyakyi took the view that there were irregularities in the transfer of the case to Momba SRM (Ext. Juris.) because in the record of appeal, there is no reason assigned for the transfer from Kato, SRM (Ext Juris.) to Momba, SRM (Ext Juris.). In her view, whatever was done by Momba SRM (Ext Juris.) was a nullity. Accordingly, she prayed for the Court to nullify the proceedings and set aside the resultant judgment. On the way forward, the learned counsel submitted that a retrial would be neither just nor proper in the circumstances, arguing that the

appellant's conviction rested solely on circumstantial evidence which, in her view, was too weak to sustain a conviction. To bolster her argument, she cited the case of Agnes Nyamuhanga v. Republic, Criminal Appeal No. 341 of 2018 [2022] TZCA 465 (TanzLII). She further submitted that the failure of the prosecution to tender the weapon allegedly used in murdering the deceased rendered the charge unproven. She paid homage to the case of Jonathan Joseph v. Republic, Criminal Appeal No. 391 of 2020 (unreported). In conclusion, she urged the Court to allow the appeal and set the appellant at liberty. In response, Ms. Onesphory, learned State Attorney, expressed support for the appellant's submission on the irregularity of the case transfer. She referred the Court to the case of Twaha Ridhiwan Amimu v. Republic, Criminal Appeal No. 398303 of 2022 [2025] TZCA 510 (TanzLII), and submitted that, in the present case, the purported second transfer was improper in law, amounting, in substance, to no transfer at all. She thus joined in the prayer that the proceedings be nullified. As to the way forward, Ms. Rugakingira, took a divergent view from Ms. Nyakyi. She contended that the prosecution witnesses were credible, sufficient to support the appellant's conviction. In so arguing, she referred the Court to the cases of Regina Alex @ Siyo v. Republic, Criminal Appeal No. 108 of 2023 [2025] TZCA 461 (TanzLII) and Abel Orua @ 6

Matiku & 2 Others, Criminal Appeal No. 441 of 2020 [2024] TZCA 78 (TanzLII). In the premises, she urged the Court to order a retrial. In a brief rejoinder, Ms. Nyakyi reiterated her submission in chief, maintaining that the prosecution's case was based on weak circumstantial evidence, incapable of connecting the appellant to the offence. Having heard the learned counsel from both sides on the first ground contained in the supplementary memorandum of appeal, Our starting point in deliberation of this matter is section 256A, now 274 (1) of the CPA which is explicit on the procedure for the transfer of criminal cases to a Resident Magistrate with Extended Jurisdiction. It provides: "274 (1) The High Court may direct that the taking of a plea and the trial of 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 sub-section (1) of section 179." [Emphasis added]. The above provision of the law requires the High Court to issue a specific and express order transferring the case to a named Resident Magistrate before he/she can assume jurisdiction to take a plea and conduct a trial. Further, it is explicit in the provision that the same said 7

Resident Magistrate who takes the plea must, unless lawfully substituted, proceed to conduct the trial to its conclusion. In the matter before us, it is not in dispute that the original transfer of Criminal Sessions Case No. 54 of 2020 was properly transferred on 27th January, 2021 to Kato, SRM (Ext. Juris.), who proceeded to take the appellant's plea and conduct the preliminary hearing. However, Kato, SRM (Ext. Juris.), did not proceed to try the case to its conclusion. Instead, on 20th July, 2022, the case was transferred to Momba, SRM (Ext. Juris.), who took over and proceeded with conducting the trial. This course of action was irregular. First, the record is bereft of any reason for the change in conduct of the trial from Kato, SRM, to Momba, SRM. Second, section 274 (1) of the CPA requires that the magistrate who takes the plea must also be the one to preside over the trial. Any deviation from that procedure, as this Court has previously emphasized, must be properly with valid reasons on record effected only through a fresh order of transfer. This position was firmly articulated in, among others, the decisions of this Court in Mussa Njile @ Masanilo & Others v. Republic, Criminal Appeal No. 500 of 2022 [2025] TZCA 682 (TanzLII) and Twaha Ridhiwani Amimu (supra), cited by the learned State Attorney. In the latter case, the Court held that: 8

"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...." By the above authority, we are satisfied that the proceedings conducted before Momba, SRM (Ext. Juris.), were vitiated by procedural impropriety, as there were no valid reasons justifying the transfer enabling him to lawfully assume jurisdiction. In the foregoing deliberations, we are decidedly of the considered view that the entire proceedings, including the resulting judgment and order made by Momba SRM (Ext. Juris.), are null and void on account of lack of jurisdiction for the reasons stated above. We thus nullify the proceedings and the resultant judgments of the Resident Magistrate's Court with extended jurisdiction. The conviction is quashed and the sentence imposed upon the appellant is set aside. As to the proper cause to be taken, we are satisfied that the interests of justice will best be served by an order for a retrial. 9

In the event, we allow the appeal to the above extent, and direct that the record be remitted to the High Court of Tanzania, Tabora Sub- Registry, for the expeditious conduct of a retrial before a competent court of law, in accordance with the law. It is so ordered. 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 10th day of October, 2025 in the presence of Ms. Stella Thomas Nyakyi, learned advocate for appellant and Ms. Upendo Florian, Learned State Attorney for the Respondent/Republic and Ms. Janekisa Bukuku, Court Clerk, is hereby certified as a true copy of the original. ]. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 10