THE COURT OF APPEAL OF TANZANIA
(CORAM:
LUBUVA, J. A., RUTAKANGWA, J. A., AND KIMARO, J. A.)
CRIMINAL
APPEAL NO. 157 OF 2003
KHAMISI RAMADHANI @
RUPINDIRA……….……APPELLANT
AND
THE REPUBLIC………………………………………RESPONDENT
(Appeal
from the Conviction of the High Court
of
Tanzania
(Mmilla,
J.)
dated
the 14th day of April, 2003
in
Criminal
Session No. 40 of 1999
-----------------------------
JUDGEMENT OF
THE COURT
=============================
21 September 2006 & 4 October 2006
LUBUVA, J. A.:
The High
Court (Mmilla, J.) sitting at Moshi convicted the appellant of the offence of
murder contrary to Section 196 of the Penal Code. The appellant was sentenced to death. Dissatisfied, this appeal has been preferred.
The facts giving rise to the appeal are
generally not in dispute. During the
subsistence of their marriage, the appellant and his wife, Gaudensia John had
four children one of whom apparently died.
Their marriage did not last for long, they divorced in 1998. Of the three surving children, the appellant
stayed with two children, namely the deceased Sophia d/o Ramadhani and Frank
s/o Ramadhani. It was the prosecution
case that on or about 7th January, 1999 at Sabuko Naibili
Village
At the trial, the appellant raised the
defence that he caused the death of the deceased without the requisite
intention that there was no malice aforethought because he was
intoxicated. The learned trial judge
took the view that the appellant must be taken to have known the consequences
of his act. He was accordingly convicted
of murder as charged.
In this appeal, as was the case in the
High Court, the appellant was represented by Mr. Marealle, learned
counsel. For the respondent Republic,
Mrs. Lyimo, learned Principal State Attorney appeared.
Upon completion of submissions by
counsel for both parties, judgment was reserved. In the course of composing the judgment of
the Court it transpired that the proceedings in the High Court were tainted
with a serious procedural irregularity which goes to the root of
jurisdiction. This will presently be
apparent.
From the record, the following position
in reflected. First, the proceedings are
titled In the High Court of Tanzania
Both the accused, the appellant in this
appeal, the State Attorney, the advocate for the accused and A. C. Lyamuya, PRM
exercising extended jurisdiction, duly signed the proceedings. Next, on 26.2.2003 B. M. Mmilla, J. sitting
with assessors, proceeded with the hearing of the case to its conclusion.
Our perusal of the record shows that
there was no order transferring the case to and be heard by the Principal
Resident Magistrate in terms of the provisions of Section 256A of the Criminal
Procedure Act, 1985 as amended by Act No. 2 of 1996. Section 256A provides that:
“The High
Court may direct that the taking of a plea and the trial of 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 conferred by
section 173(1)”.
In the absence of the order transferring
to and be heard by the magistrate in exercise of extended jurisdiction, it
follows that A. C. Lyamuya, PRM. Extended jurisdiction had no jurisdiction to
conduct the preliminary hearing.
Furthermore, the magistrate sat in the wrong court, namely the High
Court at Moshi instead of the Court of Resident Magistrate, Moshi. For these reasons, the preliminary
proceedings presided over by A. C. Lyamuya, PRM. were of no legal
validity. They were null and void as she
lacked jurisdiction.
Consequently, the ensuing proceedings in
this case though duly heard by a judge of the High Court, B. M. Mmilla, J. was
based on invalid preliminary hearing.
The provisions of Section 192(1), (2), (3) and (4) were not complied
with. This Court has in a number of
cases held that where the provisions of this section which are mandatory are
not complied with, the proceedings are vitiated. See for instance, Mt. 7479 Sgt. Benjamin
Holela v. Republic (1992) TLR. 121, Efraim Lutambi v. Republic,
Criminal Appeal No. 30 of 1996 and Liberty
It hardly needs to be over emphasized
that the provisions of Section 192 of the Criminal Procedure Act, 1985 are of
fundamental importance. Not only are they
meant to accelerate trials and disposal of cases, they are also intended to
reduce cost to the parties and without prejudice to them as well.
In the upshot, the mandatory provisions
of Section 192 of the Criminal Procedure Act, 1985 having not been complied
with, the subsequent proceedings in the case were a nullity.
In the event, for these reasons, we are
constrained to allow the appeal, quash the conviction and set aside the
sentence of death. We order an expeditious
re-trial of the appellant in compliance with the law set out under the Criminal
Procedure Act, 1985 including Section 192.
DATED
at ARUSHA this 4th day of October, 2006.
D. Z. LUBUVA
JUSTICE OF APPEAL
E.M.K. RUTAKANGWA
JUSTICE OF APPEAL
N. P. KIMARO
JUSTICE OF APPEAL
I
certify that this is a true copy of the original.
S. M. RUMANYIKA
DEPUTY REGISTRAR
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