Masonga Daud @ Buluba vs Republic (Criminal Appeal No. 7151 of 2025) [2026] TZHC 3107 (1 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA CRIMINAL APPEAL NO. 7151 OF 2025 (Arising from Criminal Case No. 66 of 2020 District Court of Biharamulo, C. G. Rugumira, RM) MASONGA DAUD @ BULUBA ......................... APPELLANT VERSUS THE REPUBLIC ........................................... RESPONDENT JUDGMENT 28 th May & 1 st June, 2026 KIWONDE, J.: The appellant, Masonga Daud @ Buluba, was charged before the trial court with an offence of being in possession of narcotic drugs contrary to section 15A(l)(2)(c) of the Drugs Control and Enforcement Act (Amendment Act) of 2017. It was averred by the prosecution that on 22 nd March, 2020 at about 08:30 hours at Kisenge village within Biharamulo District in Kagera Region, the appellant was in unlawful possession of 13 kilograms of narcotic drugs commonly known as bhang. i

The appellant denied to have committed the offence, however, after a full trial, he was found guilty, convicted and sentenced to served 30 years imprisonment in jail. Being dissatisfied with the decision of the trial court, the appellant has preferred an appeal to this court based on five (5) grounds of appeal. But I shall not reproduce them here on reason that the appeal has not been heard and or determined on merit. When the appeal was called up for hearing, the appellant appeared in person, while, the respondent was represented by Mr. Amon Mang'era, learned State Attorney. Before hearing the merit of the appeal, this court asked the parties to address it on the issue of use of Kiswahili language in the trial while the appellant was not conversant with it. The appellant merely said that he was prejudiced for he told the court that he wanted to use Sukuma vernacular language but the trial court refused his request. However, to the contrary, the learned State Attorney argued that the use of Kiswahili did not prejudice the appellant because it had been used from the beginning to the defence stage. He said the charge was read 2

over and explained to the appellant in Kiswahili, the prosecution witnesses were heard in Kiswahili and the appellant cross-examined them in Kiswahili. Also, the learned State Attorney submitted that even when the appellant was addressed of his rights under section 231 of the Criminal Procedure Act, Cap 20, he replied that he would defend himself and he had no defence witnesses or exhibit. On 7 th September, 2020, the appellant continued to defend correctly in Kiswahili language as to how he is not responsible for the offence. According to the State Attorney, the appellant therefore, comprehended Kiswahili. His intention to use Sukuma language was a technic to show that he did not understand what was going on from the beginning of the case. He cited the decision in Lilian Jesus Fortes Versus Republic, yet, he argued that the facts are distinct from this case. In his view, the appellant was not prejudiced by using Kiswahili language since he defended himself in such same language. He argued that it was correct for the trial court to refuse his request to use Sukuma language. The appellant had nothing to rejoin. 3

Having read the trial court's records and considered the rival oral submissions from the parties, the main issue for determination is whether the appellant was accorded a fair trial. It is settled law that the accused person has to be fairly tried. The doctrine of fair trial involves the concept that the trial has to be conducted in the language the accused properly comprehends or understands. This is the import of the principle of arraignment where the charge laid down against the accused person must be read over and explained to him in the language he or she understands well so that he can understand the nature and substance of the charge, follow the proceedings and prepare his defence. In Irene John Versus Republic (Criminal Appeal No. 21906 of 2024 [2024] TZHC 8042 (13 th September, 2024) TanzLII, this court ( His lordship, Ngigwana, J.) held that the court records should not only show that the charge was read over and explained to the accused person in the language he understands but also it has to reflect and disclose the kind of language the accused is well versed. Furthermore, in Kigundu Francis and another Versus Republic (Criminal Appeal No. 314 of 2010) [2011] TZCA 341 (25 th November, 2011) TanzLII, it was stated that for a fair trial, the accused person has 4

to understand the language of the court, if not, the interpreter has to be engaged to interpret for the accused person in order to enable him understand the nature of the proceedings and follow. Apart from that, in Mussa Mwaikunda V. R [2006] T. L. R 387, it was stated that for a fair trial of the accused person to be proved, there are six (6) minimum standards to be met; (i) the accused person to be able to understand the nature of the charge (ii) to plead to a charge and exercise the right of challenge (iii) to understand the nature of the proceedings that it is an inquiry as to whether the accused committed the offence charged (iv) to follow the course of the proceedings (v) to understand the substantial effect of any evidence that may be given in support of the prosecution and (vi) to make a defence or to answer the charge. In this appeal, it is true that the appellant did not raise the issue of language he knew, at the early stage. The charge was read over and explained to him in Kiswahili language, prosecution witnesses testified to the end but when the case was at the defence stage is when the appellant asked to use Sukuma language. However, the request was objected to by the public prosecutor and the trial court refused it. At page 18 of the trial court's typed proceedings, it is shown that, I quote: 5

"PP: For defence hearing, we are ready to proceed. Accused: I am ready, though, I pray to use Sukuma language; PP: I object the prayer raised by the accused person since from the first day when the matter took over, he used to cross-examine witnesses via Swahili language and even responding to the questions asked by this court using the same language. Therefore, requesting to use Sukuma language at this juncture could be as a joke on the part of the accused person. Court: From what is stated by the public prosecutor, the court thinks right to proceed with Swahili language on the part of the accused person unless otherwise, he drops his defence. Accused: I am ready to defend myself via Swahili language. " Therefore, it is apparent from the above quoted proceedings that the trial of the appellant proceeded in Kiswahili, the language which he was not conversant with. Even if he might have understood Kiswahili to some extent, but in defence, he put it clear that he would adequately offer his 6

defence in Sukuma language but it was refused. In my view, the reason that the appellant delayed to reveal or raise the issue of the language he knew well, was unfounded and not backed up by law. Had the trial court taken into cognizance of the fair trial principle, it would order the case to start afresh by involving an interpreter. By refusing to allow the appellant to use his own language, means he did not properly comprehend the nature of the charge against him, he could not follow the proceedings and prepare his defence. This had prejudicial effect since he was finally convicted and sentenced to jail imprisonment for a term of 30 years. This is tantamount to deprivation of his right to be adequately heard. In law, the right to be heard is fundamental and it should not be lightly deprived of. In Yuves Malima Nyakina Versus Republic (Criminal Appeal No. 48 of 2023) [2025] TZCA 619 (24 th June, 2025) TanzLII, it was stated that the right to be heard is of sacred nature and it should not be lightly denied. Also, in Masumbuko Rashid V. R [1986] T. L. R 212, it was held //tfer a//a that the right to be heard is fundamental and a constitutional right; a party should not be condemned unheard. This will be a violation of principles of natural justice including the right to be heard. 7

It follows therefore that; the whole trial of the appellant was a nullity. The entire proceedings, decision and sentence cannot be left to stand. The way forward for a null trial is to nullify the proceedings, quash the judgment and set aside the sentence and where possible or necessary, order retrial. However, in law, retrial can be ordered only if the prosecution evidence was sufficient to ground conviction. This means that if the evidence is weak or insufficient, the order of retrial will enable the prosecution to fill up gaps and cause injustice to the appellant. In the case of Fatehali Manji V. R [1966] E. A. 343, it was stated inter alia that retrial cannot be ordered for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial. Besides that, in Malegi Shenye @ Lusinga Versus Republic (Criminal Appeal No. 152 of 2020 [2023] TZCA 19374 (11 th July, 2023) TanzLII, the court stated that the appellate court can order retrial if the interests of justice so require; trial de novo cannot be ordered if the prosecution evidence is weak for it will be giving them opportunity to fill up the gaps. In the appeal at hand, it is not a fit case to order retrial because the prosecution evidence was insufficient to form the basis of conviction of the appellant. This is because it was doubtful. The prosecution evidence 8

of PW1, Sgt Idd, indicates that the appellant was suspected to have been cultivating narcotic drugs called cannabis sativa {bhang), instead of investigating on the information, no prosecution witness gave evidence to establish this allegation. This shows that the case was poorly investigated. Not only that but also, the witnesses said the search was conducted at the appellant's house where the said drugs were found, but PW2, Philipo Sabini said the search was done at the house of Masonga Gervas. But there was no evidence to show that Masonga Daud @ Buluba is the same as Masonga Gervas. Failure to testify to that effect shows that search was conducted to a house of a different person. In his defence, the appellant said the police officers searched in the house of Linda Gervas, so, the prosecution evidence shows that the alleged search was conducted in the houses of three (3) different persons. The prosecution had to clear this doubt by evidence to prove that the said narcotic drugs were found in possession of the appellant. These doubts have to be resolved in favour of the appellant. For the foregoing reasons, this is not a fit case to order trial de novo fax the prosecution will get opportunity to fill up gaps in the evidence. As a 9

result, the proceedings of the trial court are nullified, judgment quashed and sentence is set aside for being a nullity due to unfair trial. The appellant has to be immediately released from custody unless he is held for other lawful reason. Dated at Bukoba this 1 st June, 2026. F. Judge 01/06/2026 Court: Judgment is delivered in chamber in the presence of the appellant, Ms. Elizabeth Twakazi, State Attorney for the respondent Republic and Suzana Tungaraza (RMA) this 1 st June, 2026 and the right of further appeal is explained. Judge A

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