James Authur Msechu vs Republic (Criminal Appeal No. 214 of 2023) [2025] TZCA 1109 (15 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MKUYE, J.A., MASOUP, J.A. And ISMAIL, J.A.^ CRIMINAL APPEAL NO. 214 OF 2023 JAMES AUTHUR MSECHU.............. ..... ............ ..................APPELLANT VERSUS THE REPUBLIC ........................... .................................................................. .. RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Songea) (Luvanda, J.) dated the 7th day of March, 2023 in DC Criminal Appeal No. 46 of 2022 JUDGMENT OF THE COURT 7th & 15th October, 2025 MASOUP, JA,: In the District Court of Songea at Songea, the appellant was charged with and convicted on four counts of stealing by a person employed in the public service contrary to sections 265 and 270 of the Penal Code, Cap. 16. He was sentenced to ten years' imprisonment on each count which were to run concurrently. It was alleged that, on 24th June, 2022, the appellant stole four Dell Vostro 3400 laptops, each valued at TZS 3,000,000/-, the property of the Judiciary of Tanzania. In a bid to establish the allegation in respect of the charge laid against him, the prosecution brought at the trial a total of ten witnesses and tendered

twelve exhibits. The evidence established that, the appellant was arrested while attempting to sell one laptop, and his disclosure led to the discovery of the other three laptops from PW6, PW8, and PW10 who admitted that they got from the appellant. The appellant denied the charge. He alleged that, there are discrepancies in the prosecution case. He maintained that, the prosecution evidence did not prove the charge beyond reasonable doubt. Aggrieved by the decision of the trial court which found that the prosecution case proved the charge to the hilt and which convicted and sentenced him as pointed out above, the appellant filed his first appeal to the High Court. The High Court sustained the conviction on the strength of circumstantial evidence and application of doctrine of recent possession. It, however, revised the sentence for each count from ten (10) years to five (5) years' imprisonment running concurrently in line with the provisions of section 170 now section 173 of the Criminal Procedure Act, [Cap. 20 R.E 2023] (CPA). Still aggrieved, the appellant lodged the second appeal, raising a number of grounds, which for reasons to become obvious shortly, we will not reproduce them here. It should, however, suffice to say that, the appellant, at the outset and with our leave, abandoned the ground that sought to challenge the sentences imposed on him. When the appeal was called on for hearing, the appellant appeared in person without representation. On the other hand, the respondent Republic was

represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney who teamed up with Mr. Frank Chonja, learned State Attorney. When the hearing of the appeal before us was about to commence, Mr. Chonja informed the Court that, they were supporting the appeal on a point of law. With leave of the Court, the learned State Attorney addressed us on the point. He referred us to page 12 of the record of appeal, where the prosecution side prayed for leave of the court to amend the charge. The leave was granted there and then. Surprisingly however, the trial of the case, he argued, proceeded with the hearing without reading the amended charge over to the appellant for him to plead thereto. The course taken, according to the learned State Attorney, is contrary to the requirements of section 234 (2) (a), now section 251 (2) (a) of the CPA. Mr. Chonja submitted that, it is plain that, the relevant provisions require the trial court to call upon an accused person to plead to the substituted charge as required by the law. The failure by the trial court to perform its mandatory duty imposed on it by the relevant provisions is a fundamental procedural irregularity going to the root of the case and whose effect vitiates the trial. On this position, we were referred to the case of Aidan Mhuwa @ Joseph and Another v. Republic [2014] TZCA 253; and Bernard Kagulu Bukima v. Republic [2025] TZCA 728. Addressing us on the course to be taken, Mr. Chonja invited us to hold that the appellant's trial was a nullity, as the appellant was denied of his statutory right

to know the material contents of the amended charge of which he was tried and subsequently convicted. Having done so, the learned State Attorney urged us to consider making an order for a retrial. The Court asked the learned State Attorney whether he thinks an order for retrial is feasible in the circumstances, regard being had to the concurrent sentences of five years imprisonment that the appellant has been serving. On reflection, and upon considering the position taken by the Court in the authorities he cited above, the learned counsel quickly changed his stance. As a result, he argued, rightly so in our view, that in view of the fact that the appellant might have already served a larger portion of the concurrent sentences of five (5) years' imprisonment term, an order for retrial may prejudice him. It may, therefore, not be feasible in the circumstances. The appellant concurred with the submission by Mr. Chonja. He had nothing more to submit on, other than urging us to set him free. In light of the submission by the learned State Attorney, we painstakingly revisited the proceedings of the trial court. Clearly, at page 12 of the record of appeal, the learned State Attorney who represented the Republic at the trial court on 12th August, 2022 is on record to have prayed for amendment of the charge which was laid against the appellant. The trial court, right away, granted the prayer. The learned State Attorney, thereafter, prayed to proceed with the hearing as on that day he had a witness. Immediately thereafter, the prosecution case

was opened and thus the trial commenced without reading over the amended charge to the appellant in terms of section 251 (2) (a) of the CPA. Consequently, the appellant was not at all heard on the amended charge. For clarity of what is on the record, we hereunder reproduce the relevant text thus: 'Date: 12/08/2022 Coram: Hon. M. Manjale, RM S/A: Hellen Accused: Present RMA: Fregiana State Attorney: For hearing. I have one witness today. I pray to make amendment on the charge sheet on the second count on the Serial Number o f Laptop. Instead o f 957, it has to read 9S. On the 3rd Count ■ the Serial Number to read FCDK2K3/. On 4 h Count to read 9P7LHM3. Also, we pray to add the number o f exhibits which is the cautioned statement o f the accused person and four laptops. Sgd: M. Manjale- RM 12/08/2022 COURT: Prayer granted. Sgd: M. Manjale - RM 12/08/2022 State Attorney Your honour, I pray to proceed with the hearing as I have one witness today.

Sgd: M. Manjale- RM 12/08/2022 PROSECUTION CASE OPENS PW1, G. 8051 D/CPL TRYPHONE, 32 YEARS POLICE OFFICER, MKUZO, CHRISTIAN sworn and states that: " In Aidan Mhuwa @ Joseph and Another (supra), when this Court encountered a situation like the one we are facing, it deliberated on the issue in details whilst referring to the relevant provisions of the law and earlier decisions of the Court on the issue. The Court stated: The law as it presently stands, allows charges to be altered or amended. A trial court is enjoined under section 234 o f the CPA to take a new plea after substitution. That section provides:- "S.234 (1) Where at any stage o f a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for alteration o f a charge either by way o f amendment o f the charge or by substitution or addition o f a new charge as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits o f the case, the required amendments cannot be made without injustice; and all amendments made under the provisions o f this subsection shall be made upon such terms as the court shall deem just.

(2) subject to subsection (1), where a charge is altered under that subsection - (a) the court shall thereupon call the accused person to plead to the altered charge;' In this case, we are settled in our minds that failure by the trial court to perform its mandatory duty imposed on it by the provisions o f section 234 (2) (a) o f the CPA is not a mere procedural lapse, but a fundamental procedural irregularity going to the root o f the case. The irregularity cannot be cured under section 388 (1) o f the CPA. (See, for instance, SHABANI ISACK @ MAGAMBO MAFURU AND ANOTHER V. REPUBLIC, Criminal Appeal No. 192 & 218 o f 2012 (unreported). While on this, we are also fortified by the decision in TLUWAYAKONNAY V. REPUBLIC [1987] TLR 92. In that case, this Court held: It is mandatory for a plea to a new or altered charge to be taken from an accused person, failure to do so renders a trial a nullity.' In the light o f the foregoing, we hold that the appellant’ s trial was a nullity." Consequently, in view of the course taken in our previous decisions, we accordingly, hold that the appellant's trial was a nullity. See also, Hamdu Abdalla Abdalla v. DPP [2022] TZCA 374. In the exercise of our revisional powers under section 6 (2) of the Appellant Jurisdiction Act [Cap 141 R.E. 2023], we nullify and quash all the proceedings 7

conducted before and the judgments of both courts below. The appellant's convictions are quashed and the sentences set aside. Mindful of the fact that the appellant might have served a significant part of the concurrent sentences, we hereby order the immediate release of the appellant from custody unless he is lawfully held for some other cause. DATED at SONGEA this 13th day of October, 2025. Judgment delivered this 15th day of September, 2025 in the presence of the Appellant in person, Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL certified as a true copy of the original. COURT OF APPEAL