Adam s/o Charles Mkude vs Republic (Criminal Appeal NO. 446 of 2015) [2017] TZCA 1006 (2 November 2017)

j ~\ ... ~() IN THE COURT OF APPEAL OF TANZANIA \ AT DAR ES SALAAM {CORAM: LUANDA, J.A., MZIRAV, J.A. And MWAMBEGELE, J.A.} CRIMINAL APPEAL NO. 446 OF 2015 ADAM S/0 CHARLES MKUDE .................................................... :. APPELLANT VERSUS THE REPUBLIC .................... ii •.•••••••••••••••••••••••••••••••••••••••••••••••••••••• RES PON DENT {Appeal from the decision of the High Court of Tanzania at Dar es Salaam) {Feleshi, J.) Dated the 3 rd day of July, 2015 in Criminal Session Case No. 39 of 2012 JUDGMENT OF THE COURT 31 st October, & 3 rd November, 2017 LUANDA, J.A.: The appellant ADAM S/0 CHARLES MKUDE was changed in the High Court of Tanzania (D'salaam Registry) with the offence of murder c/s 196 of the Penal Code, Cap 16. RE 2002. It was ~lleged in the c_harge sheet that the appellant murdered one Sakina Muktasar. The trial High Court was satisfied that the prosecution had proved its case to the hilt. The appellant was convicted as charged and sentenced to suffer death by hanging.

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• Aggrieved by the finding of the trial High Court, the appellant has preferred this appeal in this Court. In this appeal, the appellant was represented by Mr. Juvenalis Ngowi, learned counsel; whereas the respondent/Republic had the services of Mr. Nassoro Katuga, learned Senior State Attorney assisted by Ms. Nancy Mushumbusi, learned State Attorney. Mr. Ngowi filed a memorandum of appeal consisting seven grounds. However, at the commencement of the hearing of the appeal, the Court wished to satisfy itself first as to the proprietness of the taking over of the successor trial learned judge from· his colleague without assigning any reason. The record of appeal shows that Utamwa, J. commenced the trial. When he was taking the evidence of D/Sgt Amos (PW2), who intended to produce the cautioned statement of the appellant, the defence objected to the tendering of it maintaining that the appellant was not 9 free agent when he gave the statement. So, Utamwa, J. had to conduct a mini trial known in legal circles as trial within trial to ascertain whether the said statement was given voluntarily. On completion, as the date of hearing of 2

the mini trial was the last day of the session, Utamwa, J. reserved the ruling and adjourned the case to the next session. That was on 6/6/2013. The case did not come up for hearing until on 18/5/2015 a period of almost 2 years after it was adjourned. This time it came before Feleshi, J; The relevant portion of the proceedings of 18/5/2015 reads as follows:- "18/5/2015 Coram: Hon. Feleshi, J. For the Republic: Ms. Yasinta Pete~ SA Assisted by Mr. Shija Eric~ SA and Lilian Machage/ SA For the Defence: Mr. Mtumwa Kiondo/ Advocate Accused: Assessors: CC: Eveline Present 1 st Omary Abdallah Pazi, Present Z'd Sarah John Kugome/ Present Id Moshi Mohamed Athumani, Present Court: Information read over to the accused and explained tdhim in Klswahili. Accused: ''Sia kweli" (Entered plea of not guilty} Court: Accused, his Advocate and the Prosecution are addressed to S. 299 of the Criminal Procedure Act. Mr. Kiondo Adv:- ... ,. - ·. •" . -- -, 3

My lorct the defence has no objection to the continuation of the trial from where it last ended. Ms. Yasinta, SA: My Lord, we too/ pray to continue with the trial from where it last Ended. Court: Sgd: Hon. E.M. Feleshi, Judge 18/5/2015

1. Parties have conceded to continuation of the trial from where it last ended. S. 299 of the CPA have been complied with
2. Prosecution case to continue.
3. Sgd: Hon. E.M. Feleshi, 4.Judge
4. 18/5/2015 Court: Parties informed that the Ruling on Trial within trial

• -- -·- - - -- . -- - - . - - - will be delivered after two days. Sgd: Hon. E.M. Feleshi, Judge 18/5/2015 4

My Lor~ we pray to defer PW2/ pending the delivery of the ruling on trial within trial. We pray the court be pleased to allow us now to call another witness. Mr. Kiondo, Adv: My Lor~ we have no objection. Court: Prayer granted. Sgd: Hon. E.M. Fe/eshi, Judge 18/5/2015 TRIAL CASE TO CONTINUE Court: Assessors reminded of their role during trial. Sgd: Hon. E.M. Feleshi, Judge 18/5/2015 PW3: Emmanuel Elianami Kiwiyi, 39 yrs Businessman resident · of Kigogo, Christian, Tanzania, Sworn and States as follows in Kiswahili:" It is clear therefore, that when Feleshi, J. took over the trial, he did not assign any reason for doing so as one of the conditions precedent for continuing hearing of the case as provided under S. 299 (1) of the Criminal Procedure Act, Cap 20 (the CPA). It is this failure to assign reason which .. prompted ·US -to raise it; · 5 ------ ··------

Mr. Nassoro told the Court that S. 299 (1) of the CPA is couched in mandatory terms in that the reason for taking over must be assigned as one of the conditions for continuation of hearing of the case. Failure to do so renders the proceedings a nullity. He urged the Court to exercise its ' revisional powers by quashing the entire proceedings and judgment and order a retrial. Mr. Ngowi supported Mr. Nassoro that Feleshi, J. was wrong when he took over from Utamwa, J. without assigning any reason. Like Mr. Nassoro, he urged us to exercise our revisional powers and quash the entire proceedings. He was hesitant to say whether we should order a retrial. Be that as it may, S. 299 (1) of the CPA which we referred herein above provides as follows. ''299(1) Where any Judge, after having heard and recorded the whole or any part of the evidence in any trial, is for any reason unable to complete the trial or he is unable to complete the trial within a reasonable time, another Judge. w_ho has and who exercises Jurisdiction may take over and continue the trial and the Judge so taking over __ may act __ on __ tbe evidence -Or proceedings---F&CQrc/ed----- 6

by his predecessor, and ma½ in the case of trial re- , summoned and re-heard and shall be informed of such right by the second Judge when he commences proceedings. /I [Emphasis ours]. From the foregoing, it is quite clear that Feleshi, J. did not say the reason for taking over from Utamwa, J. as one of the conditions precedent for continuing hearing of the case as mandated by S. 299(1) of the CPA. That is an irregularity. Is the omission fatal? In Masuke Malugu @ Matinyi & Another V Republic, Consolidated Criminal Appeals Nos. 308 of 2015 and 518 of 2016 (CAT - Unreported) the Court was faced with almost similar problem in that a successor Judge did not give reason for the takeover. The Court was in the first place said that since the wording of S.299 (1) · of' the CPA has almost similar wording with S. 214(1) of the CPA applicable in subordinate Courts, then the construction of S.214 (1) of the CPA should equally apply to S. 299(1) of the CPA. The Court said:- ''Now since Section 214 (1) of the CPA has almost similar wording with 5. 299(1) of the CPA, it fs-propertharthe Eohs1:ttJction ofS214(1} of CPA 7 . ·-------.------------ -·· ·-·--·- ·--- -·--

befitting that of S.299 (1} of the CPA. That is to say even in the High Court, the Judge taking over from his predecessor must give reason as to why he takes over. To conduct a partly heard matter without assigning reason is to act without Jurisdiction. In view of the explanation we have given it is obvious that failure to comply with S. 299(1) of the CPA was a fatal irregularif½ the consequences... ✓ , And S. 214 (1) of the CPA referred to above reads as follows:- 214(1) Where any magistrate/ after having heard and recorded the whole or any part of the evidence in any trial or conducted in whole or part any committal proceedings is for any reason unable to complete the trial or the committal proceedings or he is unable to complete the trial or committal proceedings within a reasonable time/ another magistrate who has a(1d who exercises Jurisdiction may take over and continue the trial or committal proceedings/ as the case may be/ and the magistrate so taking over 8

• may act on the evidence or proceeding recorded by his predecessor and may, in the case of a trial and if he considers it necessary, resummon the witnesses and recommence the trial or the committal proceedings. " [Emphasis supplied] As regards the construction of S. 214 (1) of the CPA the Court in Abdi Masoud @ Iboma and 3 others V Republic, Criminal Appeal No. 116 of 2015 (Unreported) said as follows:- "In our view,, under S. 214 (1) of the CPA it is necessary to record the reasons for reassignment or change of trial magistrate. It is a requirement of the law and has to be complied with. It· is' a prerequisite for the second magistrate's assumption of jurisdiction. If this is not c_gf1J_p/f~tl with the successor magistrate would have no authority or jurisdiction to try the case. Since there is no reason on record in this case as to why the predecessor trial magistrate was unable to complete the trial the proceedings of the successor magistrate were conducted withqut

• -Jurisdiction, hence a nullity.,,,__ 9

II [Empasis ours] Further, this Court underscored the need to comply with S. 214(1) of the CPA in Priscus Kimaro V Republic, Criminal Appeal Nd. 301 of 2013 (Unreported) thus, we quote:- " ... where it is necessary to reassign a partly heard matter to another magistrate, the reason for the failure of the first magistrate to complete the matter must be recorded. If that is not done/ it may lead to chaos in the administration of justice. Anyone, for personal reasons could just pick up any file and deal with it to the detriment of justice. This must not be allowed. " [Emphasis Supplied] So, from what we have explained above, the omission by the successor judge to assign reason for the take over is fatal, the consequences of which is to declare those proceedings conducted by Fel~shiL.La nyU_i_ty_. We

• • ------ --- -- -- . --- ~- entirely agree with Mr. Nassoro and Mr. Ngowi. · In the exercise of our revisional powers as provided under S. 4 (2) of the Appellate Jurisdiction Act, Cap. 141 RE 2002, we declare the ____ proceedings conduGted- t>y-feleshi, J-a null-ity. The same are quashed and - -- 10

Ii fl· · the sentence set aside. In the interest of justice, we order the trial to start afresh before another judge and another set of assessors. Order accordingly. DATED at DAR ES SALAAM this 2 nd day of November, 2017. B. M. LUANDA JUSTICE OF APPEAL R. E. MZIRAY JUSTICE OF APPEAL J.C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. :)#I&:= .P ~w.-·HAMPlKY A .. SENIOR DEPUTY REGISTRAR COURT OF APPEAL 11