Waigama Johanes Marko @ Mnyaru vs Republic (Criminal Appeal No. 7280012 of 2025) [2025] TZCA 1021 (6 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CO.RAM; KEREFU, J.A., MWAMPASHI, J.A. And AGATHO, J.A.) CRIMINAL APPEAL NO. 7280012 OF 2025 WAIGAMA JOHANES MARKO @ MNYARU.................................... APPELLANT VERSUS THE REPUBLIC ........................................................................ RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Musoma, at Musoma) (Ruiwahuka, SRM-Ext. Jur.) dated the 23rd day of December, 2024 in Extended Jurisdiction Criminal Appeal No. 12540 of 2024 RULING OF THE COURT 1s t & 6th October, 2025 KEREFU, J.A.: This appeal stems from the decision of the District Court of Tarime in Mara Region where the appellant and his co-accused (who is not a party to this appeal), were charged with armed robbery contrary to section 287A of the Penal Code, Chapter 16 of the Revised Laws (the Penal Code). It was alleged that, on 20th August, 2020 at Mjini Kati Village within Tarime District in Mara Region, the appellant and his co-accused stole cash money TZS. 1,500,000.00 the property of Mwita Chacha Magige and immediately before stealing they used machete to assault the said Mwita Chacha Magige in order to obtain and retain the said money. l

The appellant and his co-accused pleaded not guilty to the charge and therefore, the case had to proceed to a full trial. In an attempt to establish its case, the prosecution lined up seven witnesses and tendered three documentary evidence, namely, the Medical Report (exhibit PI), the Police Form No. 3 (P.F.3) (exhibit P2) and the sketch map of the scene of crime (exhibit P3). The appellant and his co-accused relied on their own evidence as they did not call any witness. They however, tendered three documentary evidence, to wit, Charge Sheet for Criminal Case No. 278 of 2020 (exhibit Dl), Charge Sheet for Criminal Case No. 73 of 2021 (exhibit D2) and Police Form No. 3 (P.F.3) (exhibit D3). After a full trial, the trial court was convinced that the case against the appellant and his co-accused was proved beyond reasonable doubt. Thus, they were both convicted and sentenced to thirty (30) years imprisonment. Aggrieved by both, the conviction and sentence, the appellant and his co-accused unsuccessful preferred different appeals before the High Court. The appellant's co-accused filed Criminal Appeal No. 4 of 2022 while the appellant filed Criminal Appeal No. 7280012 of 2025 which is the subject matter of this ruling. In the memorandum of appeal, the appellant raised eight grounds of complaints. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose 2

of this ruling, to reproduce them herein. In addition, and taking into account the nature of the preliminary point of law raised by the learned Senior State Attorney, we do not deem it desirable, for the purpose of this ruling, to revisit the evidence adduced by the parties at the trial and or reproduce the factual background to this appeal. When the appeal was placed before us for hearing, the appellant entered appearance in person. On the other side, the respondent Republic was represented by Ms. Shose Naiman and Mr. Charles Kagirwa, both learned Senior State Attorneys. Before we could embark on the hearing of the appeal on its merit, Ms. Naiman sought and obtained leave of the Court to argue a point of law that, the learned High Court's Judge erred in law in dismissing the appellant's appeal without affording him the right to be heard. She argued that, before the High Court, the appellant was condemned unheard as all his grounds of appeal were not considered and determined contrary to the requirement of Article 13 (6) of the Constitution of the United Republic of Tanzania, 1977 (the Constitution). That, the first appellate court only relied on the decision of the High Court which determined the appeal of the appellant's co-accused and proceeded to dismiss his appeal without according him right to be heard. To amplify on this point, the learned Senior State Attorney referred us to 3

pages 105 to 111 of the record of appeal and beseeched us to invoke the powers of revision bestowed upon the Court under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) to nullify the aforesaid proceedings, quash the High Court's decision and subsequent orders thereto and remit the case file to the High Court for the appellant's appeal to be heard afresh. In his response, the appellant being a layperson did not have much to argued on the point of law raised by the learned Senior State Attorney. He only urged us to proceed to determine his appeal on merit. On our part, having perused the record of appeal, we agree with Ms. Naiman that, it was improper for the learned High Court Judge to dismiss the appellant's appeal without considering and determining the grounds of appeal submitted by the appellant. We wish to emphasize that, it is the duty of an appellate court such as the High Court or a Court of Resident Magistrate with extended Jurisdiction, as it was in this case, to resolve issues raised in the grounds of appeal. It is evident at page 117 to 119 of the record of appeal that, before the Resident Magistrates' Court, the appellant submitted seven (7) grounds of appeal, but all of them were not considered and yet his appeal was dismissed. In the case of Simon Edson @ Makundi v. Republic, Criminal Appeal No. 5 of 2017 (unreported) when faced with a similar anomaly, we stated that: 4

"Reading from the extract above, it is dear that the first appellate judge neither considered the grounds o f appeal presented before that court; nor did she reevaluate the evidence on record to analyse whether the trial Court was correct in its findings. There is therefore no gainsaying that the High Court judgment is not a judgment which the law envisages Similarly, in the instant appeal, since all the appellant's grounds were not considered the judgment delivered thereto is a nullity. As intimated above, the appellant was also not afforded right to be heard. This Court has always emphasized that the right to be heard is a fundamental principle of natural justice that should be observed by all courts in the administration of justice. Article 13 (6) (a) of the Constitution provides that: "When the rights and duties o f any person are being determined by the court or any other agency - that person shall be entitled to a fair hearing and to the right o f appeal or other legal remedy against the decision o f the court or o f the other agency concerned." Therefore, a denial of the right to be heard in any proceedings would vitiate the entire proceedings. In Abbas Sherally and Another 5

v. Abdul S. H. M. Faza I boy, Civil Application No. 33 of 2002 (unreported), we observed that: " The right o f a party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified/ even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach o f natural justice. "[Emphasis added]. See also the cases of Mbeya - Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R 251 and Deo Shirima & Others v. Scandinavian Express Service Ltd (2009) 1 EA 127. In the instant appeal, since it is evident that the appellant was not accorded the right to be heard, therefore, the learned Resident Magistrate with Extended Jurisdiction arrived at her finding in contravention of the above stated principle. Such omission amounted to a fundamental procedural error which occasioned a miscarriage of justice on the appellant. 6

In the premises, and as we are satisfied that the omission done by the Resident Magistrate with Extended Jurisdiction is fatally defective, we hereby quash the judgment delivered on 23r d December, 2024 in respect of Criminal Appeal No. 12540 of 2024 and set aside subsequent orders thereto. Consequently, and for the interest of justice, we remit the case file to the High Court for it to re-hear the appeal and compose a fresh decision after having considered and determined all grounds of appeal submitted by the appellant in accordance with the law. DATED at MUSOMA this 3r dday of October, 2025. Ruling delivered this 6thday of October, 2025 in the presence of the Appellant in person and Mr. Jonas Samwel Kivuyo, learned State Attorney for the Respondent/Republic, Shabani Kinyai, Court Clerk; is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL C. M. MAGESA DEPUTY REGISTRAR C O UR T OF AP PF AI