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Judgment of The Court: 20th & 25th November, 2020
Judgment of The Court: 20th & 25th November, 2020
AT TABORA
fCORAM: MWANGESI. 3.A.. MWANDAMBO. 3.A. And LEVIRA. J.A.T
MWANDAMBO. 3.A.:
The District Court of Kigoma, tried and convicted Nassoro s/o
130(1) (2) (e) of the Penal Code, Cap. 16 R.E. 2002 [now RE.2019].
The particulars of the charge were to the effect that on 17th August,
2010 at about 12:00 hours the appellant had carnal knowledge of a girl
record of appeal, the appellant aided two persons who committed the
offence; "a pastor" and another undisclosed person who raped her in
turn whilst the appellant held PWl's legs apart facilitating the
judgment that after the fateful incident, PW1 narrated the ordeal to
her sister stating that she identified her assailant; the appellant by a
scar above his eye. However, it was not until 17th November, 2010;
three months later to be exact, when the police arrested the appellant
who was later arraigned in the trial court for the offence of rape. It is
equally evident from the judgment of the trial court that the appellant
had told the trial court that his arrest was initiated by one Bob Dullah
PW l's sister nor the police who investigated the case was called to
testify before the trial court. The judgment is equally silent if there was
appellant's defence.
In its judgment, the trial court made a finding that the appellant
did not personally have carnal knowledge of PW1 other than aiding the
assailants both of whom were at large. Nonetheless, it held that the
did not amuse the appellant who unsuccessfully appealed to the High
which did not prove the charge beyond reasonable doubt, appellant's
supporting the appeal on four main grounds to wit; one, the evidence
R.E. 2002 [now R.E. 2019] (the CPA) in preferring the charge against
the appellant who only aided the actual offenders; three, weak
evidence of visual identification in the absence of identification parade;
and four, unexplained delay in arresting the appellant coupled with the
concurred with the trial court and dismissed the appeal culminating
2018 on which date hearing could not proceed for reasons which will
proceedings of the trial court were missing from the record of appeal.
Registrar of the High Court that efforts to trace the missing copy of the
the Deputy Registrars to try and draw lessons from other jurisdictions
July, 2015. That decision drew experiences from the US, South Africa
and Kenya on similar problems like ours in this appeal. From the above
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before scheduling the m atter for hearing by
either High Court or this Court." [at page 6].
Deputy Registrar, High Court, Tabora Zone wrote to the office of the
letter Ref. No. J/HCT/C-90/Vol. VII/2/87 dated 11th June 2018. By its
letter Ref. No. NPS of TB/C.20/D.R/01 dated 24th September 2020, the
informed the Deputy Registrar that the copies requested could not be
traced from its office. Earlier on, the Deputy Registrar had sent similar
record of appeal in line with the order made on 13th February 2018.
the efforts to obtain missing copies from the stakeholders had failed.
In other words, the position obtaining on 13th February 2018 had not
stakeholders.
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The above notwithstanding, the appeal was cause listed for
2020 on which the appeal was called on for hearing, Ms. Upendo
fact that the position obtaining on 13th February 2018 had not changed
copies of proceedings of the trial court, Ms. Malulu offered what she
of the Appellate Jurisdiction Act, Cap. 141 [R.E 141 2019] henceforth
the ADA, and nullified the proceedings of the trial court resulting in the
the instant appeal having regard to the fact that the appellant had
with its determination this way or the other. Admittedly, the state of
affairs in the instant appeal, are, to say the least quite disturbing. We
that loss of court records and other documents erodes the confidence
justice. Undeniably, the proceedings of the trial court are missing that
Deputy Registrar.
legislature has left it to the courts to look for a solution. There is not so
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subscribe. At the risk of making this judgment unduly long, we have
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constitutional duty o f appellate courts, indeed
a ll courts, to keep the stream s o f justice pure;
to protect it from m anipulation and abuse, and
from being overran by unscrupulous persons
acting in collusion with dishonorable court
officials to pervert its course. Inevitably, an
appellate court faced with this im passe has a
duty to ensure, on balance, that these
com peting interests are sim ultaneously
realized. "[A t page 6]
relevant factors which must inform an appellate court like ours in cases
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4. Where it is proven that the m issing record is m aterial to the
determ ination o f the appeal it is for the court to determ ine
the viability o f a reconstruction o f the lo st record.
the hearing of the appeal. Similarly like in the instant appeal, efforts to
Deputy Registrar of the High Court explaining failed efforts to trace the
much needed copies of proceedings. The only difference lies in the fact
that the High Court in Mfaume's case determined the appeal which
gave rise to the impugned decision without being seized with the trial
court's proceedings. Confronted with the dilemma in balancing the
appeal and the fact that his conviction had not been reversed by any
court, the Court resorted to its revisional power and declared the
inevitable to order that there could not have been any valid appeal
from the irregular proceedings of the High Court. At the end of it all,
the Court quashed the conviction and set aside the sentence meted
District court on 13th April 2011. He has thus spent 9 years and more
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compared to 16 years in Mfaume Shaban Mfaume's case but we do
availability of proceedings which will pave way for the hearing of his
Constitution.
The learned Senior State Attorney expressed his doubt on the validity
of the charge which, to him was not drawn in conformity with section
132 of the CPA taking into account the role the appellant is claimed to
variance with the charge. Sadly, the first appellate court's judgment is
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and quash the proceedings of the High Court in DC. Criminal Appeal
2010 are quashed and the judgment convicting the appellant quashed
and sentence set aside. Inevitably, our order shall result in the
appellant's immediate release from custody unless held therein for any
Order accordingly.
S. S. MWANGESI
JUSTICE OF APPEAL
L. J. S. MWANDAMBO
JUSTICE OF APPEAL
M. C. LEVIRA
JUSTICE OF APPEAL
D.R/LYIMO
DEPUTY REGISTRAR
COURT OF APPEAL
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