Didas Jumatatu Silayo vs Republic (Criminal Appeal No. 28 of 2022) [2024] TZCA 1169 (29 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: SEHEL, 3.A., FIKIRINI, J.A, And MLACHA, J.A1 CRIMINAL APPEAL NO. 28 OF 2022 DIDAS JUMATATU SILAYO. ....... ......... ....... .......... ....APPELLANT VERSUS THE REPUBLIC ............................... .......... ........... ..............RESPONDENT (Appeal from the Judgment of the High Court of Tanzania Moshi, at Moshi) (Simfukwe, J) Dated 15th day of November, 2021 in Criminal Appeal No. 51 of 2021 JUDGMENT OF THE COURT 26th & 29lh November,. 2024 FIKIRINI, J.A.: The appellant, Didas Jumatatu Silayo, a man of 61 years old found himself in a problem with the laws after he was accused that on diverse dates in January and February, 2019, he had committed an offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code Cap. 16 Revised Laws. He was thus charged in Criminal Case No. 36 of 2019. The particulars of the charge were that the appellant, on those diverse unknown dates, had carnal knowledge of a girl of nine (9) years old, name withheld for the preservation of her dignity. We shall thus call her "3D" or the victim or PW2.

Before the trial court, a total of five (5) prosecution witnesses were summoned and a medical examination report was admitted and marked exhibit P L The witnesses were Regina Thomas Mamore (PWl), "JD" (PW2), Doris Desderis Bichumila (PW3), WP 6044, DC Jane (PW4) and Sr. Renaida Tarimo (PW5). The defence had only one witness, the appellant, who testified as DW1. It ali started with PW2 not following up on her class lessons, as she was sleepy most of the time. Upon inquiry by PWl, PW2 revealed the ordeal. On her way home from school on 28th January 2019, she met the appellant, who dragged the victim to the maize farm and raped her. PW2 stated that she could not scream as the appellant held her by the mouth and later threatened her he would kill her had she dared to tell anyone. The findings were reported to PW2's grandmother. The information was also shared with PW4, the Village Executive Officer (VEO) at Katangara and the Village Chairman, who happened to be present. PW2 named the appellant and another person by the name Baruti as the people who had been raping her. The matter was reported to the Police and PW l, PW2, PW3, a teacher named Mmole and the Police officer escorted PW2 to Huruma hospital where she was examined by PW5, on 1st February, 2019. The examination carried out revealed that PW2 was not a virgin, and her vagina had widened with no bruises

or injuries, signifying that she had been raped. PW4 also took tests to check her HIV and other venereal disease status, the results of which were negative. A PF3 duly filled was tendered and admitted, marked exhibit P L During his defence, the appellant denied all the allegations levelled against him by the children involved that he had been touching them. He alleged that he was arrested and taken to the Police, later released and asked to pay TZS. 60,000/= and other hospital expenses. His response that he had no money led to his second arrest and arraignment in court. The trial court evaluated and analysed the evidence; satisfied that the prosecution had proved its case, convicted and sentenced the appellant to thirty (30) years imprisonment. Aggrieved by the trial court decision, the appellant appealed to the High Court, raising nine (9) grounds. Our perusal of the record of appeal discovered that the appellant had two criminal charges against him. These were Criminal Cases Nos. 36 and 37, which were heard by the same District Court Magistrate. Unfortunately, the two cases were placed before two different judges on appeal.

This is the genesis of the quagmire facing the present appeal before us. The complication was heightened on 23rd August, 2021 when Criminal Appeal No. 51 of 2021, came on for hearing. The appellant prayed for the appeal to be argued by way of written submissions, the prayer which was not objected to by the learned State Attorney, present in court on that day. The 1st appellate court Judge, granted the prayer by the appellant. The appeal was ordered to proceed by parties filing their written submissions in the following order:

1. Submissions in chief to be filed by 6/9/2021,
2. Reply to be filed by 20/9/2021,
3. Rejoinder, if any, to be filed by 27/9/2021, and
4. Mention on 27/9/2021. The written submissions were filed, though the appellant had to apply for an extension of time to do so. He, therefore, filed written submissions on 11/10/2021 instead of the 6/9/2021 initially ordered. The respondent filed theirs on 25/10/2021, and a rejoinder by the appellant was filed on 2/11/2021. All the filed written submissions were concerning Criminal Appeal No. 37 of 2021. Even though what was before her were submissions unrelated to Criminal Case No. 36 of 2021,

the 1st Appellate Judge determined Criminal Appeal No. 51 of 2021 without parties being heard or having filed written submissions regarding Criminal Case No. 36 of 2021. She upheld the conviction, enhanced the sentence by substituting the thirty (30) years imprisonment to life imprisonment. When this appeal was called on for hearing on 26th November, 2024, present in Court was the appellant, who had no representation, Ms. Janeth Sekuie, learned Senior State Attorney assisted by Ms. Tusaje Samwe! learned State Attorney, appearing for the respondent/Republic. At the earliest, we invited parties to address us on the propriety of the proceedings before the High Court pertained to Criminal Case No. 36 of 2021, from which the written submissions were filed. The written submissions so far filed addressed the appeal originating from Criminal Case No. 37 of 2021 and not Criminal Appeal No. 36 of 2021, the one before the court at the time. Ms. Sekuie admitted to the irregularity that although the judgment referred to Criminal Case No. 36 of 2019, the written submissions were meant for Criminal Case No. 37 of 2019. So essentially, no appeal hearing was held regarding Criminal Case No. 36 of 2019. She urged us to invoke our revisional powers under section 4 (2) of the Appellate

Jurisdiction Act, Cap. 141 Revised Laws (the AJA) and revise the proceedings by nullifying them and the judgment that stemmed from it She also prayed for the record to be remitted to the High Court for the hearing of the appeal. Being a layperson, the appellant had nothing much to say except leave it to the Court to decide. The proceedings in Criminal Appeal No. 51 of 2021 were marred with irregularity. This is because the High Court Judge relied on written submissions filed addressing Criminal Case No. 37 and not Criminal Case No. 36, which was the appeal before her for determination. The mix up can only be cured by nullifying the proceedings and written submissions filed on the respective dates connected to Criminal Case No. 37, while the involved appeal was in Criminal Case No. 36 of 2019. Although the Judge's decision was about Criminal Case No. 36 of 2019, she could not have made any sensible decision without hearing the parties or ordering them to file written submissions related to that particular case, which she had not. The submissions she relied on in arriving at her decision had nothing to do with the victim identified as "JD" involved in Criminal Case No. 36 of 2019. Instead, it was about the victim in Criminal Case No. 37 of 2019, referred to as "KY."

To avert further mishap and the danger of condemning the appellant unheard, this being his fundamental right, we thus, in terms of section 4 (2) of A]A, quash the proceedings and judgment purported to be in Criminal Appeal No. 51 of 2021 and set aside all the orders therefrom. The best available option to service justice to the appellant is to remit the record in this appeal to the High Court for hearing and determination of the appeal in Criminal Appeal No. 51 of 2021. Meanwhile, the appellant shall remain in remand custody, waiting for the rehearing of his appeal. It is so ordered. DATED at MOSHI this 28th day of November, 2024. The Judgment delivered this 29th day of November, 2024 in the presence of the appellant in person and Ms. Tusaje Samwel, learned State Attorney for the respondent/Republic is hereby certified as a true B. M. A. SEHEL JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL