Mwita Mahunda @ Mgusuhi and Another vs Republic (Criminal Appeal No. 56 of 2021) [2024] TZCA 1244 (11 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: WAMBALI, J.A.. MAIGE, 3.A. And RUMANYIKA. J.A .) CRIMINAL APPEAL NO. 56 OF 2021 MWITA MAHUNDA @ MGUSUHI.............................................. 1 st APPELLANT SOKOINE MANDARA @ MGORE M R IM I ................................. 2nd APPELLANT VERSUS THE REPUBLIC........................................................................RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Musoma with Extended Jurisdiction atTarime) (Mushi. SRM. EXT. JUR^ Dated the 8th day of November, 2020 in Criminal Sessions Case No. 4 of 2020 JUDGMENT OF THE COURT 26th November & 11th December, 2024 WAMBALI, J.A.: This appeal arises from the decision of the Court of Resident Magistrate of Musoma sitting atTarime in Criminal Sessions Case No. 4 of 2020 presided over by Mushi, Senior Resident Magistrate with extended jurisdiction (SRM, Ext. Jur.). In its decision dated 8th November 2020, the appellants who were the first and third accused, respectively, were, in terms of sections 196 and 197 of the Penal Code, Cap. 16 convicted of the offence of murder and sentenced to suffer death by hanging. It is

noteworthy that in the same decision, the trial court acquitted three other persons; namely, Nyamarwa Mrimi @ Mgore, Mwita Chacha Marungu @ Thomas Chacha Mwita @ Marwa and Mwita Makuri Edward @ Marwa who were the second, fourth and fifth accused, respectively. The trio are therefore not party to this appeal. The particulars in the information placed before the trial court alleged that, the appellants together with three others mentioned above, on 17th October, 2014 at Kwisara Village within Tarime District in Mara Region, murdered one Chacha Zakaria @ Christian Chacha Zakaria @ Christian Zakaria Mwita. It is apparent in the record of appeal that the appellants and three others pleaded not guilty and strongly contested the allegation levelled against them by the prosecution during the trial. At the trial, the prosecution relied on the evidence of four witnesses and the Postmortem Report to substantiate its case. The appellants and three others defended themselves and did not summon witnesses. For the purpose of this judgment, we do not deem it desirable to revisit the evidence of the parties during the trial which essentially led to the convictions of the appellants. It is apparent that the appellants are seriously dissatisfied with the decision of the trial court, hence the instant appeal. It is important to point 2

out that initially, the first and second appellants lodged in the Court two memoranda of appeal comprising eight and six grounds of appeal respectively. Later, the appellants lodged jointly a supplementary memorandum of appeal containing three grounds of appeal. The appellants also lodged jointly, written submissions and list of authorities to support the appeal. Nonetheless, before the hearing of the appeal, Mr. Baraka Makowe, learned advocate who was assigned to represent the appellants, lodged in the Court a supplementary memorandum of appeal containing three grounds of appeal in substitution of the previous memoranda lodged by the appellant. However, at the hearing, it was apparent that the determination of the appeal centred on the appellants' complaint in the first ground. The complaint is to the effect that, the trial Senior Resident Magistrate with extended jurisdiction had no jurisdiction to preside over and determine the case against the appellants because the provisions of section 256A (1) of the Criminal Procedure Act, Cap 20 (the CPA) was contravened. Submitting in support of the respective ground, Mr. Makowe stated that according to the record of appeal, on 8th February 2020, the Judge In charge of the High Court of Tanzania at Musoma, pursuant to section

256A of the CPA, transferred the case to I.E. Ngaile, Resident Magistrate with extended Jurisdiction at the Court of Resident Magistrate of Musoma for plea taking. He submitted further that on 26th February, 2020, Ngaile, RM. Ext. Jur. conducted the Preliminary Hearing and adjourned the hearing to another session to be scheduled by the Deputy Registrar of the High Court. He added that, the trial of the appellant commenced on 20th November, 2020 before Mushi, SRM. Ext. Jur. until he completed and delivered the judgment on 8th December, 2020 at Tarime. However, Mr. Makowe submitted that, the record of appeal does not contain the order of the High Court transferring the case to Mushi, SRM. Ext. Jur. apart from the one directed to Ngaile, RM Ext. Jur. In the circumstances, Mr. Makowe submitted that in the absence of the order of the High Court transferring the case to Mushi, SRM, Ext. Jur., in terms of section 256A (1) of the CPA, the trial against the appellants is a nullity because the trial court lacked jurisdiction. He emphasized that, it is the position of the law that, transfer of the case under the stated provisions is to a specific magistrate and not otherwise. In the event, Mr. Makowe prayed that the proceedings in Criminal Sessions Case No. 4 of 2020 be nullified, convictions of the appellants quashed and sentence set aside. However, he left upon the Court to

determine whether to order a retrial or look into the evidence on the record and discharge the appellants. In response, Ms. Mwajabu Tengeneza learned Principal State Attorney assisted by Ms. Happiness Machage, learned State Attorney who appeared for the respondent Republic, outrightly supported the appeal based on the appellants' complaint in the first ground. Essentially, Ms. Tengeneza concurred with the submissions by Mr. Makowe in total with regard to the noncompliance with the provisions of section 256A (1) of the CPA. To demonstrate her position, she made reference to the decision of the Court in Musa Njile Masanilo and Two Others v. The Republic (Consolidated Criminal Appeal Nos. 160, 161 & 166 of 2022) [2024] TZCA 803 (22 August 2024, TANZLII). However, with regard to the decision of the Court on the way forward considering the fate of the tainted trial court's proceedings, she urged us to order a retrial in view of the factual setting on the record. We have thoroughly perused both the record of appeal and the original file in Criminal Sessions Case No. 4 of 2020. We are satisfied that there is no order of the High Court made in terms of section 256A (1) of the CPA that transferred the case to Mushi, SRM. Ext. Jur. Indeed, there is no indication on why it was not practicable for Ngaile RM. Ext. Jur., to

proceed with the trial though he had been assigned to deal with plea taking only. In this regard, we find that Mushi, SRM. Ext. Jur. had no jurisdiction to try the case against the appellants though he was duly bestowed with extended jurisdiction in terms of section 173 (1) of the CPA when he presided over the trial. For clarity, section 256A (1) of the CPA provides: "The High Court may direct that the taking o f a piea 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 extended jurisdiction has been granted under subsection (1) of section 173". From the reproduced provisions, it is clear that a magistrate with extended jurisdiction duly appointed under section 173 (1) of the CPA cannot assume jurisdiction to try a case of an accused person who had been committed for trial by the High Court without proper direction and transfer by the High Court in terms of section 256A (1) of the CPA. It is acknowledged that, the Court has consistently insisted that such transfer from the High Court is to a specific magistrate, conferred with extended jurisdiction and that a trial conducted without compliance with section 256A (1) of the CPA renders the trial court's proceedings a nullity. In Abraham Ramadhani @ Chino v. The Republic (Criminal Appeal No.

130 of 2013) [2013] TZCA 182 (12 December 2013, TANZLII), the Court stated that: "From the reading o f sections 256A (1) and 173 (1) (a) and (b) o f the Criminal Procedure Act, it is dear that the transfer o f the case from the High Court to the Court o f Resident Magistrate must be directed to a specific magistrate conferred with extendedjurisdiction to hear such a case". The Court has also consistently stressed the importance of ensuring that a Resident Magistrate with extended jurisdiction who takes a plea must also conduct a trial unless there are circumstances which prevent him from doing so, in which case the respective reasons must be apparent in the record before another Resident Magistrate takes over the trial. In Juma Lyamwine v. The Republic, Criminal Appeal No. 42 of 2001 (unreported), the Court stated: "Section 256A (1) of the CPA envisages that the Resident Magistrate with extended jurisdiction to whom the case is transferred will take a piea and then conduct a trial. And a trial, no doubt, includes a preliminary hearing". Moreover, in Msana Mwita @ Marwa v. The Republic, Criminal Appeal No. 194 of 2012 (unreported), the Court remarked:

"... section 256A envisages that the Magistrate exercising extended powers to whom a case is transferred must take the piea as weii as conduct the trial. We wiii hasten to add that the PRM EJ to whom the case has been transferred as above must take the piea and conduct the trial to completion unless for some reason , which must appear on the record, the PRM EJ who started to deal with the matter is unable to proceed with it to the end". At this juncture, we wish to remind the respective authority in the High Court to ensure that cases involving accused persons committed for trial by that court can only be tried by a Resident Magistrate with extended jurisdiction upon compliance with the direction issued under the provisions of section 256A (1) of the CPA. Similarly, we remind Resident Magistrates with extended jurisdiction to ensure that they have the requisite jurisdiction bestowed on them in accordance with the law before presiding over cases of such nature. In short, they should assume jurisdiction upon being seized with the direction issued by the relevant authority in the High Court in terms of section 256A (1) of the CPA. It is emphasized that it is the direction issued under that provision which confers a Resident Magistrate with a requisite jurisdiction to try such cases.

In the result, we hold that Mushi, SRM. Ext. Jur., had no jurisdiction to try the case against the appellants for noncompliance with the provisions of section 256A (1) of the CPA. Consequently, the appellants' trial was a nullity. The next question is what should be the way forward. We have given careful consideration to the submissions of the counsel for the parties. We are aware that basically, it is not in the interest of justice that accused persons should undergo a second trial because of failure by the trial court or the prosecution to conduct the case properly at the first. However, each case must depend on its particular facts and circumstances and thus a retrial should only be ordered where no prejudice is likely to be caused to the accused person (see Fatehali Manji v, The Republic (1966) E.A. 343). In this case, we are satisfied that this appeal concerns a technical defect and therefore, an order of retrial aims to make good the technical defect. In the circumstances of this case, we are of the considered view that a retrial will be in the interest of justice. In the result, we allow the appeal based on the first ground. Consequently, considering the circumstances under which the case was transferred to Ngaire RM-Ext. Jur. for plea taking only and the ultimate trial by Mushi, SRM., Ext. Jur., we nullify the proceedings of the trial court

from the preliminary hearing and set aside the direction transferring the case for plea taking. We further quash the convictions and set aside the sentences of death imposed on the appellants. Ultimately, we remit the case to the High Court and direct that it should be dealt with in accordance with the law. Meanwhile, the appellants should remain in custody pending a retrial. DATED at MUSOMA this 10th day of December, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 11th day of December, 2024 in the presence of Mr. Baraka Makowe, learned counsel for the appellants and Mr. Zarubabel Ngowi, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL