Sadick Hamis @ Rushikana & Others vs Republic (Criminal Appeal No. 80 of 2023) [2025] TZCA 1058 (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. 80 OF 2023 SADICK HAMIS @ RUSHIKANA ........................................ 1 st APPELLANT SYLIVESTA MUSSA @ TAM ATI KINGWENDU .................... 2nd APPELLANT ABEL BENEDICTO @ MWENDOWASAA @TEACHER............3rd APPELLANT RAMADHAN KASSIMU @ NKUYA MANYWELE ................... 4™ 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. 1 of 2021 JUDGMENT OF THE COURT 30th September & 10th October, 2025 GALEBA, J.A.: On 28th April, 2014 during the night, a group of gangsters raided the residence of one Ibrahim Mohamed, a resident of Ussoke area, within Urambo District in Tabora Region. The sudden raid on the said Ibrahim Mohamed's compound, was accompanied with irregular shootings from the armed robbers, presumably in order to create terror and instil fear at the scene of the crime, so that no neighbour or passer-by would easily volunteer assistance to the family under the brutal attack. After the robbery, the thugs left the scene of the crime, but on the way, they met two police officers, namely No. G. 3388 P/C Shaban Mbua and No. F. 5179 P/C Jumanne Mrisho l

(the deceased). Upon noting that the two individuals were police officers, naturally posing a threat of an imminent arrest, the robbers shot at both officers, whereupon P/C Shaban passed away on the spot, and P/C Jumanne died a while later when receiving treatment at Tabora Regional Hospital. According to the prosecution, the thugs who shot the deceased police officers to death were none other than the four appellants in this appeal. Thus, upon their arrests on various dates, the appellants were arraigned before the Court of a Resident Magistrate at Tabora in Criminal Sessions Case No. 1 of 2021, to answer the charge of murder before Kato SRM with extended Jurisdiction (the trial court). After a full trial, they were convicted for having murdered the deceased, and were accordingly sentenced to suffer death by hanging. The appellants were aggrieved by that decision, hence the present appeal. In advancing their grievances to this Court, on 24th March, 2023, all the appellants lodged a single memorandum of appeal containing 12 grounds. In addition to the above memorandum for all the appellants, on 25th April, 2023, each appellant presented a separate memorandum, with grounds ranging from 4 to 9. However, on 29th September, 2025, Mr. Kanani Aloyce Chombala learned advocate, filed a joint supplementary memorandum of appeal for the first, second and third appellants, raising 5 grounds of appeal. On her part, Ms. Stella Thomas Nyakyi also learned advocate, lodged a supplementary memorandum raising 2

3 grounds on behalf of the fourth appellant. The first ground of appeal raised by Ms. Nyakyi was as follows: "1. That the proceedings andjudgment in the appeal is a nullity for want o fjurisdiction due to an improper transfer order." At the hearing of the appeal, the first, second, third and fourth appellants, were represented by Mr. Chombala, Mr. Amos Gahise, Mr. Kelvin Kayaga and Ms. Nyakyi, respectively, whereas, the respondent Republic had the services of Ms. Grace Lwila, learned Senior State Attorney, Ms. Eva Msandi and Mr. Salyungu Kibinza, both learned State Attorneys. As we were about to start off with hearing parties' advocates on the grounds of appeal, Ms. Nyakyi abandoned all the grounds of appeal raised on behalf of the fourth appellant except the above quoted ground of appeal, which she said was sufficient to dispose of the appeal. Messrs. Chombala, Gahise and Kayaga were at one with Ms. Nyakyi's approach. They followed suit by abandoning their grounds of appeal in all memoranda of appeal of their respective appellants, undertaking to support Ms. Nyakyi in arguing the above quoted ground of appeal, for it would dispose of the appeal. In view of that, we marked all grounds of appeal by all appellants abandoned except the above quoted ground of appeal.

In arguing the only ground of appeal in this matter, Ms. Nyakyi submitted that, according to available records, the case was transferred to the Resident Magistrate's Court of Tabora and was assigned to Ngaeje SRM with extended jurisdiction, for both plea taking and trial. She added that, although Ngaeje SRM took the appellants' plea and conducted preliminary hearing, the learned SRM did not preside over the trial of the case as per section 256A (1) of the Criminal Procedure Act (the CPA). Ms. Nyakyi submitted that, instead, on 20th July, 2022, the same case was transferred for the second time to Kato, SRM with extended jurisdiction who presided over the trial to finality. According to her, the second transfer order and all the proceedings presided over by Kato SRM are null and void for the said judicial officer did not have jurisdiction to preside over the case. Thus, she beseeched us to nullify the proceedings presided over by Kato SRM. To support her contention, the learned advocate referred us to two decisions of this Court namely, Omari Matonya v. R, Criminal Appeal No. 207 of 2022 and Clement Zabron v. R, Criminal Appeal No. 383 of 2023 (both unreported). Ordinarily, a retrial would have always been the fit order to make following nullification of Kato SRM's proceedings and orders, however, in this case, Ms. Nyakyi contended, if such an order was to be made, her client would be prejudiced because of the alleged issues she highlighted in the 4

evidence upon which the fourth appellant had been convicted. She therefore implored us to acquit the fourth appellant and order his immediate release from prison. Next was Mr. Chombala, who spoke not only for the first appellant but also for Messrs. Gahise and Kayaga for the second and the third appellants. First, he supported the stance taken by Ms. Nyakyi, and her prayer for this Court to nullify all the proceedings and orders that were made by Kato SRM. As for the way forward, he made a considerable submission stating that the evidence that was tendered at the trial before Kato SRM, was problematic on a number of aspects, such that if the case will be remitted for its trial de novo, the prosecution will fill in the gaps and make better their case. Thus, his prayer was, like his counterpart for the fourth appellant, to acquit the first, second and third appellants. To support his proposition, he relied on this Court's decisions in Sadick s/o Hamis @ Rushikana & Others v. R, Criminal Appeal 382 of 2017; Criminal Appeal 383 of 2017; Criminal Appeal No. 381 of 2017 and Zuberi Moses @ Ahungua and Two Others v. R, Criminal Appeal No. 597 of 2015 (both unreported). As indicated above, Mr. Chombala spoke for both Messrs. Gahise and Kayaga. In that context Mr. Gahise adopted the submissions of Mr. Chombala. Mr. Kayaga did the same but added one remark, namely that, the third appellant, was the only appellant whose link to the case was the 5

weakest of all, such that ordering his retrial would be nothing, but prejudicial to him. Reacting to the above submissions, was Ms. Msandi. First, she was in agreement with the learned advocates for the other parties that following what happened, it is only lawful that the proceedings presided over by Kato SRM be nullified. As for the way forward, the learned State Attorney was of a completely opposite position. It was her firm contention that, as Kato SRM had no jurisdiction to preside over the proceedings, then whatever he did should never be considered in making a decision of whether to order an acquittal or a retrial. In view of that, she submitted that in order to ensure that justice is done, a fresh trial ought to be ordered because, no valid trial has so far been conducted in the circumstances of the matter before us. So, she was confident that this is a fit case to order a retrial, and implored us to do so. From the submissions of learned counsel, two issues arise for our determination; one, whether Kato SRM had jurisdiction to preside over the proceedings that led to the appellants' conviction, and; two, if the SRM had no jurisdiction, what should be the way forward in the circumstances of this case. 6

The first issue is centred on the interpretation of section 256A (1) of the CPA before adoption of its 2023 revised edition in July, 2025. That section used to provide as follows: "-(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 extendedjurisdiction has been granted under subsection (1) o f section 173." [Emphasis added] In view of the above section, the Judge Incharge of the sub registry of the High Court at Tabora, issued the first transfer order dated 27th January, 2021. That order is found at page 38 of the record of appeal, and its substance is as follows: 'Court: The Criminal Sessions Case No. 78 o f 2019 is hereby transferred to the RM's Court o f Tabora with extended Jurisdiction and is assigned to Hon . Gabriel Patrick Ngaeje, SRM with extended jurisdiction, pursuant to section 256A (1) of the CPA. Sgd Amour S. Khamis JUDGE." [Emphasis added] 7

In terms of the above order, on 9th July, 2021, Ngaeje SRM took the appellants' plea and conducted preliminary hearing of the case. However, after that session, the learned SRM did not proceed with the trial of the case as per the law. Instead, he stated at page 45 of the record of appeal that "the matter is adjourned to the other date that the accused wiii be informed for trial in the High Court” That order was problematic because the matter had been transferred and was pending before him for taking plea and trial of the case. After the above 'order', the record is silent until 20th July, 2022, when the High Court issued yet another transfer order assigning the case to Kato SRM. This order is found at page 46 of the record of appeal, and it is to the following effect: "Court: The Criminal Sessions Case No. 1 o f2021 is hereby transferred to the RM's Court o f Tabora with extended Jurisdiction and is assigned to Hon » J. A. Kato, SRM with extended jurisdiction, pursuant to section 256A (1) of the CPA. Sgd A. B. Saiema JUDGE." [Emphasis added] The point in this appeal is that the first transfer order having assigned the case to Ngaeje SRM for him to take plea and to conduct hearing of the whole case as required by section 256A (1) of the CPA, it was ineffectual to

transfer the same matter and assign it to a different judicial officer to carry out the same legal processes, without assigning any reasons. In law, the second transfer cannot confer any jurisdiction to the subsequent judicial officer. Fortunately, it is not the first time that this Court is finding itself in the situation it is now in. In Juma Lyamwiwe v. R, Criminal Appeal No. 42 of 2001 (unreported), having faced a similar scenario, this Court had the following to say: W e also wish to point out that, under section 256 A (1) [of the CPA], it is envisaged that a Resident Magistrate with Extended Jurisdiction to whom a case has been transferred wiii take a piea and then conduct a trial." The above guidance and interpretation of section 256A (1) of the CPA, has been restated on numerous occasions including in Twaha Ridhiwani Amimu v. R, Criminal Appeal No. 398303 of 2022 and Omary Matonya (supra). Having so found, we allow the only ground of appeal argued and agree with the learned counsel for all parties by answering the first issue in the negative that, Kato SRM had no jurisdiction to entertain the case on any aspect. We thus nullify the proceedings he presided over, including an order 9

convicting the appellants. The sentence of death that was imposed on the appellants, is also set aside. Ngaeje SRM's order that the appellants would be tried by the High Court, is also reversed. On the way forward which was a subject of the second issue, we wish to state that, with the utmost attention, we took our time to listen to parties when arguing for, and against an order for retrial. Parties' counsel gave clarifications on all points that needed any clarifications and we commend them for research and industry, particularly those who received briefs within short time limits. All arguments were carefully reviewed and profoundly thought through, considering each and every minute of their details. This was done in order to find out, which order between acquittal and retrial, would ensure that justice will be done to both the deceased and the appellants. After so doing, it became clear to us that the circumstances of the case that gave rise to this appeal, strongly demand that a trial de novo, is a deserving 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 appellants be placed before the Judge Incharge of the High Court of Tanzania at Tabora, for his appropriate action according to law, in view of the order we have just made. 10

Meanwhile, pending their trial de novo, the appellants shall remain in custody as remandees. DATED at TABORA, the 9th 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 10thday of October, 2025 in the presence of Mr. Kanani Chombala, learned counsel for the 1s t appellant, Mr. Amos Japhet Gahise, learned counsel for the 2n d appellant, Mr. Kanani Chombala holding brief for Mr. Kelvin Kayaga, leaned counsel for the 3r d appellant, Ms. Stella Thomas Nyakyi, learned counsel for the 4th appellant, Ms. Upendo Florian, learned State Attorney for the respondent/Republic and Mr. Oscar li