JOSEPH MAWETA v LEKITETYI KARASI 1992 TLR 70 (HC)

 JOSEPH MAWETA v LEKITETYI KARASI 1992 TLR 70 (HC)

Court High Court of Tanzania - Dodoma

Judge Maina J

29 April 1992 E

Flynote

Criminal Practice and Procedure - Trial - Services of an intepreter - Necessary where

the accused does not know the language of the court. F

-Headnote

This is an appeal by the appellant against the decision of the District Court of Dodoma

which perused the original proceedings in Haneti Primary Court and ordered the

retrial of the respondent on the ground that the respondent did not get a fair trial. G

Held: (i) Conducting trial against the respondent, who did not know Kiswahili,

without the assistance of an intepreter was an un-incurable irregularity;

H (ii) the respondent was not given a fair trial.

Case Information

Appeal dismissed.

[zJDz]Judgment

Maina, J.: The appellant was the complainant before the primary court at Haneti in I

which the respondent was charged with assault causing actual bodily harm contrary

to section 214 of the

1992 TLR p71

MAINA J

Penal Code. The Primary Court acquitted the respondent. The appellant was A

dissatisfied and he appealed to the District Court at Dodoma. The District Court

quashed the proceedings before the Primary Court and ordered a retrial. This appeal

is against the decision of the District Court.

The learned senior district magistrate declared the proceedings before the Primary B

Court a nullity on the ground that the respondent, who was the accused person, did

not get a fair trial. The proceedings were conducted in Kiswahili language which the

respondent did not understand. I may hasten to add that the trial Primary Court

magistrate found the respondent guilty of the offence charged, but the two assessors

C who sat with him found him not guilty. I have also to point out, like the learned

senior district magistrate did, that interpreter who was present when the charge was

read over to the respondent, does not appear to have been sworn or affirmed as

required by section 26(2) of the Primary Courts Criminal Procedure Code. It is not

clear whether D the interpreter appeared only when the plea was taken on 11 May

1988.

The evidence was recorded on 11 May 1988 when witnesses gave evidence for the

prosecution, and there is no indication whatsoever whether the interpreter was

affirmed or sworn. Similarly, when the trial proceeded on 13 and 14 May, 1988, there

is no E indication anywhere in the record whether there was an interpreter present.

If the interpreter was present on 11 May 1988 when the charge was read over to the

respondent, as the record shown, that interpreter was not sworn or affirmed. That

was an irregularity. When the trial proceeded on 13 and 14 May 1988, there is no F

indication that there was an interpreter. Again, that was an irregularity. These

irregularities are incurable. The respondent was not given a fair trial. The learned

Senior District Magistrate properly quashed those proceedings before the trial

primary court an ordered a retrial. I must add that the retrial should be before

another magistrate of G competent jurisdiction.

Having found that the proceedings were a nullity, it is not necessary to consider

whether or not there was sufficient evidence to convict the respondent. That will

have to be considered by the primary court when the retrial is held. I do not wish to

comment on H the evidence because anything which I may say on the evidence will

prejudice the primary court which will hold the retrial.

I Appeal dismissed.

1992 TLR p72

A