Joseph Kerange @ Maro & Another vs Republic (Criminal Appeal No. 538 of 2022; Criminal Appeal No. 7065605 of 2025) [2025] TZCA 1012 (3 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU. J.A., MWAMPASHI. J. A. And AGATHO. J.A.^ CONSOLIDATED CRIMINAL APPEALS NO. 538 OF 2022 & 7065605 OF 2025 JOSEPH KERANGE @ MARO..................................................... 1 st APPELLANT MAKORI MWITA @ NYITIKA ................................................... 2 nd APPELLANT VERSUS THE REPUBLIC .............................................................................. RESPONDENT (Appeal from the decisions of the Resident Magistrates Court of Musoma at Tarime and Musoma) (Marlev. SRM-Ext-Juris. and Tarimo, PRM-Ext-Juris.^ dated the 30th day of September, 2022 and 05th day of October, 2023 in Criminal Sessions Cases Nos. 19 of 2021 & 46 of 2022 RULING OF THE COURT 29th September & 3rd October, 2025 MWAMPASHI, J.A.: This decision concerns the death of one Mwese s/o Pius @ Ndege (deceased) which occurred on 03.07.2004 at Nyagasense Village within the District of Serengeti in Mara Region. As to who was responsible for the said death, fingers were pointed to Joseph Kerange @ Maro and Makori Mwita @ Nyitika, the appellants herein together with one Mwirabi Motela Mwirabi who is not a party to these appeals. Allegedly after being at large for about 17 years, the appellants herein surfaced and were thus, i

arrested and charged with the offence of murdering the deceased contrary to sections 196 and 197 of the Penal Code. Though accused of murdering the same person, that is, the deceased, the appellants were however, not jointly charged. While the 1st appellant was tried, convicted and sentenced to suffer death by hanging in Criminal Sessions Case No. 19 of 2021, the 2n d appellant was so tried, convicted and sentenced in Criminal Sessions Case No. 46 of 2022. Both trials were conducted in the Resident Magistrates' Court of Musoma by Resident Magistrates with Extended Jurisdiction after being transferred from the High Court under section 256A (1) of the Criminal Procedure Act, Cap. 20 (the CPA). For the reason that they were separately tried, the appellants preferred different appeals namely; Criminal Appeal No. 538 of 2022 by the 1st appellant and Criminal Appeal No. 7065605 of 2025 by the 2n d appellant. It is also noteworthy to state at this stage that, due to the fact that the two appeals mentioned above are interrelated, they were cause listed together and they both came for hearing before us on 29.09.2025. Having considered the fact that the trials from which the two appeals arose involved the death of the same deceased and as the material relevant evidence adduced by the prosecution against the appellants was the same in both trials, for convenience and consistence, we directed that the two

appeals be consolidated and be heard as one, in terms of rule 69 (3) of the Tanzania Court of Appeal Rules, 2009. Briefly, the background of the matter as obtained from the record of the two appeals, is as follows: According to Sophia Boniphace who was the Acting Village Executive Officer of Nyagasense Village and who testified as PW3 in both trials, one Pius Ndege reported to her that the deceased who was his son had stolen his goat. Upon receiving that complaint, PW3 allegedly ordered the appellants and one Mwirabi Motela who were the village militiamen, to find and arrest the deceased. Deogratias Pius Ndege who, in both trials, testified as PW1, told the trial courts that, the deceased was his brother who was troublesome and who had been regularly fighting and disturbing their father Pius Ndege. That, on 03.07.2004, in protestation for their father giving goats to one of their brothers, the deceased stole one goat from their father and was thus reported to PW3. In the evening hours pf 03.07.2004 at about 19.00 hrs, PW1 met the appellants who were looking for the deceased. As PW1 knew that the deceased was at the house of Emmanuel Fortunatus Mhochi who testified as PW2 in both trials, he took the appellants to PW2,s house and the deceased was arrested. Upon the arrest of the deceased, PW1 and PW2 accompanied the appellants who took the deceased to PW3 who 3

ordered the deceased to be locked up in the village lock-up until the following day. The evidence of PW1, PW2 and PW3 was also to the effect that the appellants locked up the deceased as ordered by PW3. However, in the next morning, the appellants were nowhere to be seen and when the lock up was opened using a spare key which PW3 had, alas, the deceased dead body was hanging from the ceiling in the lock-up. The incident was reported to the police by PW3 whereby C. 8527 S/Sgt. David Nyasebwa who testified as PW4 in the 1st Appellant's trial, rushed to the scene with Dr. Willy Elias Machomvu who testified as PW6 in the 1st appellant's trial but as PW5 in the 2n d appellant's trial. Dr. Mchomvu examined the dead body and observed that it had a swollen neck with bruises and a nail had pierced his head. He opined that the cause of death was internal bleeding due to the nail that pierced the deceased's head. The appellants who were arrested in 2020 and 2021 and charged with the offence of the murder of the deceased which as we have alluded to earlier, occurred in 2004, did not only deny to have committed the murder in question but they also denied to have been village militiamen. While the 1st appellant claimed to have been living in Dar es Salaam even before the incident till in 2020 when he came back to the village, the 2n d appellant claimed that he never left the village at any point in time. The 1st appellant

told the trial court that he was arrested on 15.05.2020 on accusations that he had threatened to kill Joseph Velerian and his fellows and that though he was charged for that offence, the charge was however, withdrawn on 03.02.2021 but he was not released and instead he was charged with the current offence of murdering the deceased. At the conclusion of the trials, it was found by the trial courts that the charge against the appellants was proved to the required standard and the appellants were thus found guilty as charged, convicted and sentenced to suffer death by hanging. Aggrieved, the appellants filed separate appeals which, as we have intimated above, have been consolidated and heard together. At the hearing of the instant consolidated appeal, whereas the 1st appellant had the services of Mr. Leonard Elias Magwayega, learned advocate, the 2n d appellant was represented by Mr. Cosmas Tuthuru, also learned advocate. On the other hand, the respondent Republic was represented by Ms. Grace Michael Madikenya, learned Senior State Attorney, assisted by Mr. Isihaka Ibrahim Mohamed, learned State Attorney. In support of their appeals, the appellants had raised a number of grounds of complaints which for reasons that will be apparent in due course, shall not be reproduced herein. Before the hearing of appeal could 5

commence, we wanted to firstly satisfy ourselves if the two learned Resident Magistrates with Extended Jurisdiction who conducted the appellants' trials and ultimately convicted and sentenced them, were properly conferred with jurisdiction to try the said two criminal sessions cases. We particularly referred the learned counsel for the parties to the record of appeals from which it is clearly shown that, on 22.11.2021 the 1st appellant's case was, in terms of section 256A (1) of the CPA, transferred from the High Court to the Resident Magistrates' Court of Musoma to be tried by Hon. F.L. Moshi, PRM, Ext. Jurs. The learned magistrate took the 1st appellant's plea and conducted a preliminary hearing before adjourning the case for hearing to a date that was to be fixed by the Deputy Registrar. However, for unknown reasons the case was not fixed for hearing before the assigned magistrate but it found its way to the Judge in Charge who, on 20.07.2022, purportedly acting under section 256A (1) re-transferred the case to the Resident Magistrates' Court and re-assigned it to Hon. Marley, SRM, Ext, Jurs. for trial. The same applied to the case against the 2n d appellant whose case was on 13.07.2022 duly transferred to the Resident Magistrates' Court of Musoma to be tried by Hon. T.E. Swai, PRM, Ext. Jurs. As it was for the 1st appellant's case, after the 2n d appellant's plea had been taken and a 6

preliminary hearing conducted by the assigned Resident Magistrate on 29.07.2022, the case was on 02.08.2023 returned to the Judge in Charge who re-transferred and re-assigned it to Hon. A.V. Tarimo, PRM, Ext. Jurs. for trial. Again, as it was for the 1st appellant's case, it is unknown and there is nothing on record showing how and why the case which had been transferred to the Resident Magistrates Court, duly registered as such and which had been assigned to Hon. T.E. Swai, PRM, Ext. Jurs. for trial, found its way back to the Judge in Charge for re-retransferring and re assignment to Hon. A.V. Tarimo, PRM, Ext. Jurs. It was in the light of the above explained circumstances that we found it pertinent to invite the counsel for the parties to address us not only on the propriety or otherwise of the second transfers and assignments of the two cases to the Resident Magistrates who tried the cases to their finality but mainly on whether the said magistrates were properly conferred with jurisdiction to try the cases. In response to the above, the counsel for the parties were in agreement that owing to the fact that initially the cases had been duly transferred and assigned to Hon. F.L. Moshi, PRM, Ext. Jurs and Hon. T.E. Swai, PRM, Ext. Jurs. the second transfers and re-assignments of the cases to Hon. Marley, SRM, Ext, Jurs. and Hon. A.V. Tarimo, PRM, Ext. Jurs. were improper. It was argued that the learned magistrates with 7

Extended Jurisdiction to whom the cases were purportedly transferred and assigned for the second time and who tried the cases to their finality had no jurisdiction to try the cases. The counsel argued that the proceedings before the said learned magistrates were a nullity and should be nullified and that the resultant convictions should be quashed. On what should be the way forward, the counsel for the parties parted ways. While Ms. Madikenya's stance was for an order for the retrial of the cases as there is sufficient evidence in support of the case against the appellants, Messrs. Tuthuru and Magwayega for the appellants, were hesitant to press for an order for retrial on account of procedural irregularities apparent on the face of record and weakness of the case for the prosecution. Specifically, the counsel pointed out two main issues making the cases not fit for a retrial; delay in the arrest and arraignment of the appellants and weak circumstantial evidence. The counsel for the appellants pointed out that, the delay for 17 years in arresting and arraigning the appellants leaves a lot to be desired. It was also contended that circumstantial evidence relied upon by the prosecution in that, the appellants are the ones who had lastly been seen with the deceased, is not watertight as the appellants denied not only to have been the village militiamen but also to have arrested the deceased as claimed by the prosecution. Furthermore, it was argued by the counsel 8

for the appellants that, there is evidence that PW3 had spare keys to the lock-up the deceased was allegedly remanded meaning that the appellants were not the only persons who had access to the lock-up. They thus refrained from pressing for an order for retrial and instead, they prayed for the appeal to be allowed and for the appellants to be set free. In her brief rejoinder, Ms. Madikenya insisted for a retrial order arguing that, the delay in the appellants' arraignment was caused by the fact that after the incident, the appellants fled and were not arrested until after 17 years. On our part, we firstly agree with the learned counsel for the parties that the learned Resident Magistrates with Ext. Jurisdiction to whom the two cases were initially assigned after the cases have been transferred from the High Court under section 256A (1) of the CPA, are the ones who were supposed to try the cases to their finality. This position was reiterated by the Court in Nasra Hamis Hassan v. Republic [2020] TZCA 1836, where it was stated that: "It must be emphasized that in terms o f section 256A (1) o f the CPA, a magistrate exercising extended powers to whom a case is transferred m ust take the plea and conduct the trial".

See also, Thomas Gasper Mchamisi v. Republic, Criminal Appeal No. 291 of 2013 (unreported). It was also improper for the cases which had been transferred to and registered in the Resident Magistrates' Court and which had not been tried to finality to have been sent back to the Judge in Charge for re-transfer and re-assignment for no reasons. In the case of Masana Mwita @ Marwa v. Republic [2014] TZCA 2289, the Court stated that: 'W e w ill hasten to add that the PRM EJ to whom the case has been transferred as above m ust take the plea and conduct the trial to completion unless for some reason ; which must appear on the record, the PRM EJ who had started to deal with the m atter is unable to proceed with it to the end". Because of the impropriety of the transfers of the cases to Hon. Marley, SRM, Ext, Jurs. and Hon. A.V. Tarimo, PRM, Ext. Jurs. who conducted the respective trials, as pointed out above, the said learned magistrates had no jurisdiction to conduct the trials and on that account the proceedings before them and the resultant judgments are a nullity. Consequently, in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap. 141, we nullify the whole proceedings in both Criminal Sessions Cases Nos. 19 of 2021 and 46 of 2022, quash the resultant judgments and set aside the sentences thereof. 10

The position regarding under what circumstances a retrial can be ordered is settled. Retrial will not be ordered where the prosecution evidence is patently weak and where by ordering a retrial, the prosecution will seize the opportunity to fill up the gaps in their case at the prejudice of the appellant. See- George Claud Kasanda v. Republic [2020] TZCA 76. Moreover, the defunct East African Court of Appeal in the case of Fetahali Manji v. Republic [1966] E.A. 341, stated that: "In g e n e ra la retrial w ill be ordered only when the original trial was illegal or defective. It w ill not be ordered where conviction is set aside because o f insufficiency o f evidence or for purposes o f enabling the prosecution to fill up gaps in its evidence at the first trial. Even where the conviction is vitiated by mistakes o f the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial shall be ordered, each case must depend on its own facts and circumstances and an order o f retrial should only be made when the interest o f justice require". Further, in Selina Yambi & Others v. Republic, Criminal Appeal No. 94 of 2013 (unreported), the Court stated that: " We are alive to the principle governing retrials. Generally\ a retrial w ill be ordered if the original trial is illegal or defective. It w ill not be ordered li

because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up gaps. The bottom line is that\ an order should only be made where the interest o f justice require". Guided by the above settled principle, we have dispassionately examined the entire relevant evidence on record and reached to a considered view that, under the circumstances of the case at hand, the two cases are not fit for a retrial. We are of a settled view that ordering retrial will not be in the interest of justice. Retrial will definitely enable the prosecution to fill up the gaps in their cases to the prejudice of the appellants. First of all, as argued by the counsel for the appellants, the fact that there was a delay of 17 years to arraign the appellants in the absence of sufficient evidence proving that the appellants were at large and out of the village for all that period of time, leaves a lot to be desired. It should be borne in mind that apart from the 1st appellant whose defence was to the effect that he had not fled but had been living at Dar es Salaam even before the incident, the 2n d appellant maintained that he never left the village at any point in time. There is no evidence on record showing that there was any serious search for the appellant within or outside the village. 12

In connection with the above considerable lapse of time in arresting and arraigning the appellants, the other thing raising reasonable doubts in the prosecution case, is the fact that except for the statements of PW3 and PW4 (S/Sgt. David Nyasebwa) which were recorded on 04.07.2004, without any explanation, the statements of all other prosecution witnesses were recorded on 05.06.2020 and 10.06.2020. However, the most alarming fact from the statements is that, while it was the case for the prosecution that the deceased was arrested for stealing his father's goat, the statement by PW4 who was the Officer in Charge of Majimoto Police Post to whom PW3 reported the death of the deceased, which appears at page 16 of the record of the 2n d appellant's appeal, is to the effect that PW3 reported to him that, the deceased was arrested and remanded in the village lock-up for failing to pay the village development levy. Mindful of the fact that PW3 had a spare key to the lock-up, PW3's report to PW4 that the deceased was arrested and incarcerated for failing to pay the village development levy while the case for the prosecution was built on the allegation that the deceased stole his father's goat, is a material contradiction which raises a reasonable doubt in the case for the prosecution. Why should there be two versions on the offence which was allegedly committed by the deceased leading to his arrest and incarceration in the village lock-up? Surely, if retrial is ordered, the pointed 13

out contradiction is likely to be rectified by the prosecution at the prejudice of the appellants. It is for the above reasons and circumstances that we find that ordering a retrial will not be in the interest of justice. In the event, we order that the appellants be released from prison forthwith unless they are held therein for any other lawful cause. Order accordingly. DATED at MUSOMA this 2n d day of October, 2025. Ruling is delivered this 3rd day of October, 2025 in the presence of Mr. Leornard Elias Magwayega, learned counsel for the 1st Appellant also holding brief for Mr. Cosmas Tuthuvu counsel for the 2n d Appellant and Ms. Joyce Matimbwi, learned State Attorney for the Respondent/Republic, and Shabani Kinyai Court Clerk; is hereby certified as a true copy of the oriqinal. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL 14