CRIMINAL PROCEDURE AND PRACTICE

CARDINAL OF CRIMINAL LAW

1. EQUALITY BEFORE THE LAW

Also known as equality under the law, equality in the eyes of the law, or legal equality, is the
principle under which all people are subject to the same laws of justice, equality, fairness, and
justice.
As according to the CONSTITUTION OF THE UNITED REPUBLIC OF
TANZANIA CAP.2 ARTICLE 13. -(1) “All persons are equal before the law and are
entitled, without any discrimination, to protection and equality before the law.”

2. PRESUMPTION OF INNOCENCE
This imposes on the prosecution the burden of proving the charge and guarantees that no guilty
can be presumed until the charge has been proved beyond reasonable doubt.
As according to the CONSTITUTION OF THE UNITED REPUBLIC OF
TANZANIA CAP.2 ARTICLE 13. (6)(b) “No person charged with a criminal offence
shall be treated as guilty of the offence until proved guilty of that offence”.

3. PRINCIPLE OF LEGALITY
Nullum crimen sine lege ("no crime without law") is the moral principle in criminal law and
international criminal law that a person cannot or should not face criminal punishment except for
an act that was criminalized by law before he/she performed the act or no crime or punishment
can exist without a legal ground.
As according to the CONSTITUTION OF THE UNITED REPUBLIC OF
TANZANIA CAP.2 ARTICLE 13.(6)(c) “No person shall be punished for any act
which at the time of its commission was not an offence under the law, and also no penalty
shall be imposed which is heavier than the penalty in force at the time the offence was
committed”.

Relevant case
 IBRAHIM HASSAN AND ANOTHER v R (1991) TLR 106 (HC)
It was Held that:
Where an Act constitutes an offence, and the penalty for such an offence is amended between the
time of the commission of such offence and the conviction therefore the offender shall be liable
to the penalty prescribed at the time of commission of such offence; The appellants were tried
for a non-existent offence. The trial was therefore a nullity.

PETER THOMAS v REPUBLIC (1996) TLR 370 (HC)

It was Held that: -.'
As the prosecution of this case was commenced without the consent of the D P P, the provisions
of s 34(4) of the Police Force Ordinance were contravened, rendering the proceedings before the
lower court null and void.

4. BURDEN OF PROOF
“onus probandi” is the obligation of a party in a trial to produce the evidence that will prove the
claims they have made against the other party. In a legal dispute. And the standard of proof must
be beyond reasonable doubt.

Relevant case;
JONAS NKIZE v REPUBLIC (1992) TLR 213 (HC)
It was stated that “the general rule in criminal prosecution that the onus of proving the charge
against the accused beyond reasonable doubt lies on the prosecution, this is part of our law, and
forgetting or ignoring it is unforgivable”.

D P P v. ELIAS LAURENT MKOBA AND ANOTHER [1990] TLR 115 (CA)

It was Held that; -
The respondents were acquitted by the trial court because there was no evidence of common
intention nor was it possible to say which accused committed the offence.
Appeal dismissed.

5. PRINCIPLE OF ARRAIGNMENT
No one should be sent to prison without being taken to Court.
Relevant case
NAOCHE OLE MBILE v REPUBLIC (1993) TLR 253 (CA)
It was Held that:
One of the fundamental principles of our criminal justice is that at the beginning of a criminal
trial the accused must be arraigned, i.e. the Court has to put the charge or charges to him and
require him to plead; Non-compliance with the requirement of arraignment of an accused person
renders the trial a nullity;

PRE – TRIAL PROCESS

CONTENTS; -
1. INSTITUTION OF CRIMINAL PROCEEDING
2. ARREST AND SEARCH
3. INTERVIEWING (CAUTIONED STATEMENT)
4. DRAFTING A CHARGE
5. DIRECTOR OF PUBLIC PROSECUTIONS (D P P)

1. INSTITUTION OF CRIMINAL PROCEEDING

Before a person is arrested someone has to complain or report about an offence committed or
someone has to be suspected of committing a crime or a crime has to be committed.

Criminal Proceeding is instituted by lodging a complaint to a police post or by bringing before

a Magistrate a person who is suspected to commit crime. Any person who has reasons to believe
that an offence has been committed may make Complaint.
As provided under CRIMINAL PROCEDURE ACT CAP 20
Section.2 "complainant" in a private prosecution, means the private prosecutor or the
person making the complaint before the court and, in all public prosecutions, means the
person presenting the case on behalf of the Republic before the court;"complaint"
means an allegation that some person known or unknown, has committed an offence;
 As under CRIMINAL PROCEDURE ACT CAP 20
Section 128.-(1)Proceedings may be instituted either by the making of a complaint or by
the bringing before a magistrate of a person who has been arrested with or without a
warrant.
(2) Any person who believes from a reasonable and probable cause that an offence has
been committed by any person may make a complaint of the offence to a magistrate
having competent jurisdiction.

2. ARREST, SEARCH & SEIZURE

A) ARREST - This is an exercise of the power to deprive a person of his or her liberty OR
taking, keeping of a person in custody by legal authority, especially in response to a criminal
charge.

CATEGORIES OF ARREST
1. Arrest by a police officer - There are limited number of circumstances in which an
officer may make an arrest:
(a) The officer personally observed a crime,
(b) The officer has probable cause to believe that person arrested committed a crime,
(c) The officer has an arrest warrant issued by a judge.
As provided under CRIMINAL PROCEDURE ACT CAP 20
Section 14.-(a) to (h)

2. Arrest by Private persons – If any person witnesses an offence, he/she doesn't need a
Warrant of arrest to arrest, as the offence committed in his presence.
As under CRIMINAL PROCEDURE ACT CAP 20
Section 16. -(1) & (2)
(1) Any private person may arrest any person who in his presence commits any of the
offences referred to in section 14.
(2) A person found committing an offence involving injury to property may be
arrested without a warrant by the owner of the property or his servants or a
person authorised by the owner of the property.
 3. Arrest by Magistrate - When any offense has taken place or committed in the presence
of the Magistrate within his local jurisdiction, he may himself arrest or cause an arrest of
the offender by his order.
As provided under CRIMINAL PROCEDURE ACT CAP 20
Section 17.- Any magistrate may at any time arrest or issue a warrant directing the
arrest of any person whom he reasonably believes has committed an offence within
the local limits of his jurisdiction.

PROCEDURE FOR ARREST

As provided under CRIMINAL PROCEDURE ACT CAP 20
Section 11. -(1) & (2)
(1) In making an arrest the police officer or other person making the arrest shall actually touch
or confine the body of the person being arrested unless there be a submission to the custody by
word or action.
(2) If the person to be arrested forcibly resists the endeavour to arrest him, or attempts to evade
the arrest, the police officer or other person may use all means necessary to effect the arrest.

As provided under CRIMINAL PROCEDURE ACT CAP 20 s.13, s.15

Section 19.-(1) If any person acting under a warrant of arrest or any police officer having
authority to arrest, has reason to believe that the person to be arrested has entered into or is
within any house or place, that person or police officer shall demand of the person residing in or
being in charge of the house or place admission into that house or place, and the person
residing in or in charge of it shall allow him free entry into and afford all reasonable facilities
for a search, within that house or place.

B. SEARCH – A person who is authorised to search has to be searched first. Search may be
conducted with or without a warrant. A warrant is not required when a search is conducted
during arresting but when a search is planned warrant is necessary.
As under CRIMINAL PROCEDURE ACT CAP 20 s.41
Section 42. -(1) A police officer may–
 (a) search a person suspected by him to be carrying anything concerned with an offence;
or
(b) enter upon any land, or into any premises, vessel or vehicle, on or in which he
believes on reasonable grounds that anything connected with an offence is situated, and
may seize any such thing that he finds in the course of that search, or upon the land or in
the premises, vessel or vehicle as the case may be.

C. SEIZURE – Immediately after search, if anything obtained or seized during that search, the
officer seizing the thing shall issue a receipt acknowledging the seizure of that thing with the
signature of the owner of the premises or his near relative or other person for the time being in
control of the premises, and the signature of witnesses if any.
As under CRIMINAL PROCEDURE ACT CAP 20
Section 38. -(3) Where anything is seized in pursuance of the powers conferred by
subsection (1) the officer seizing the thing shall issue a receipt acknowledging the
seizure of that thing, being the signature of the owner or occupier of the premises or his
near relative or other person for the time being in possession or control of the premises,
and the signature of witnesses to the search, if any.

3. INTERVIEWING (CAUTIONED STATEMENT)

These are statements which are taken at the police custody when interviewing a person who is in
restraint in respect of an offence.
As under CRIMINAL PROCEDURE ACT CAP 20
Section 50.-(1) For the purpose of this Act, the period available for interviewing a
person who is in restraint in respect of an offence is–
(a) subject to paragraph (b), the basic period available for interviewing the person, that
is to say, the period of four hours commencing at the time when he was taken under
restraint in respect of the offence;
(b) if the basic period available for interviewing the person is extended under section 51,
the basic period as so extended.

As under CRIMINAL PROCEDURE ACT CAP 20

 Section 51.-(1) Where a person is in lawful custody in respect of an offence during the
basic period available for interviewing a person, but has not been charged with the
offence, and it appears to the police officer in charge of investigating the offence, for
reasonable cause, that it is necessary that the person be further interviewed, he may–
(a) Extend the interview for a period not exceeding eight hours and inform the person
concerned accordingly; or
(b) Either before the expiration of the original period or that of the extended period,
make application to a magistrate for a further extension of that period.

Relevant case
SALIM PETRO NGALAWA V. REPUBLIC [2004] (CA)
It was stated that “there was the issue of the caution statement of the appellant, Exh P 4. Was it
recorded within the provided statutory time? The appellant was arrested on 26 th February, 2000,
at 13.00 hours, and the statement was recorded on 28 th February, 2000, that is, after more than
twelve hours and that contravened section 50 of the Criminal Procedure Act Cap 20 [2002
RE] which prescribes the basic period available for interviewing a person who is in the custody
of police”.
We are, therefore, of the well-considered view that there is no evidence against the appellant,
we quash the unanimous finding of the two lower Courts and we set aside the order of
imprisonment. The appellant is to be set free unless his further incarceration is lawful.

Janta Joseph Komba & 3 other v. Republic, Cr no 95 of 2006 (Murder case)

It was stated that “The accused was arrested on 5th November, 1990 and stayed in custody for
four days before his statement was taken. That the statement of this appellant was taken contrary
to the procedure laid down for obtaining statements of suspects”
Held; Consequently, we allow the appeal, quash the conviction and set aside the sentence of
death imposed. We order the release from custody of the appellants forthwith unless otherwise
held lawfully.

4. DRAFTING A CHARGE
PARTS OF A CHARGE – There are three parts of a Charge; -
A. HEADING
1. The name of the Court e.g;- In the District Court of Ilala
2. Criminal Case Number e.g;- Criminal Case No............of 2018
3. Parties to the Case e.g;- Republic v. Massawe Joshua Massawe
4. Tittle of the Document e.g;- “Charge”

B. BODY
1. Statement of the offence - which comprises of; -
a) The name of the offence e.g;- Murder
b) The specific law and provision under which the offence is created e.g;- section 196
of Penal Code
c) The specific law and provision under which punishment is created e.g;- section 197
of Penal Code
2. Particulars of the Offence – This depends on the four (W)s;-
a) WHO – This refers to a person committed an offence.
b) WHEN – This refers to a time of commission of an offence.
c) WHERE – This refers to a place the offence was committed.
d) WHAT – This refers to the offence committed.

C. CONCLUSION
1. Date of which it was prepared. e.g;- Dated at DODOMA this...day of...2018
2. Signature of the one who prepared.
3. The name and identity of the one who prepared it.

SAMPLE OF CHARGES

FIRST EXAMPLE
IN THE DISTRICT COURT OF ILALA
AT SAMORA AVENUE
 ECONOMIC CASE NO...........OF 2018

REPUBLIC
V.
JOHN NGOSHA MASAMAKI

CHARGE
STATEMENT OF OFFENCE
UNLAWFUL POSSESSION OF GOVERNMENT TROPHIES; contrary to Sections 86(1),
(2)(c)(ii) and (3) of the Wildlife Conservation Act [Cap 283 R.E 2002] read together with
paragraph 14(d) of the First Schedule thereto, and Sections 57(1) and 60 of Economic and
Organised Crime Control Act [CAP 200 R.E. 2002].

PARTICULARS OF OFFENCE
JOHN NGOSHA MASAMAKI, on 21st day of May, 2018 at around 04:15 hours Buguruni
Malapa within Ilala District in Dar es salaam, was unlawful found in possession of Government
Trophies.
Dated at DAR ES SALAAM this 10th day of June, 2018
….................................
Dr. JABIRI YUSUPH KATURA,
STATE ATTORNEY

SECOND EXAMPLE
IN THE RESIDENT MAGISTRATE COURT OF DAR ES SALAAM
AT KISUTU

ECONOMIC CASE NO...........OF 2018

REPUBLIC
Versus
JOHN NGOSHA MASAMAKI
 CHARGE
STATEMENT OF OFFENCE
TRAFFICKING IN NARCOTIC DRUGS; contrary to Sections 15(1)(b) and (3) of the Drugs
Control and Enforcement Act [Number 5 of 2015].

PARTICULARS OF OFFENCE
JOHN NGOSHA MASAMAKI, on 1st day of January, 2018 at around 15:15 hours Ubungo
Mabibo within Ubungo District in Dar es salaam, was found unlawfully Trafficking Narcotic
Drugs common known as 'Mirungi'.
Dated at DAR ES SALAAM this 10th day of January, 2018
….................................
Dr. JABIRI YUSUPH KATURA,
STATE ATTORNEY

JOINDER OF COUNTS
As provided under THE CRIMINAL PROCEDURE ACT, CAP 20
133.-(1) Any offences may be charged together in the same charge or information if the offences
charged are founded on the same facts or if they form or are a part of, a series of offences of the
same or a similar character.

JOINDER OF ACCUSED
134.-(1) The following persons may be joined in one charge or information and may be tried
together, namely–
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetting or an attempt to commit such
an offence;
(c) persons accused of different offences committed in the course of the same transaction;
(d) persons accused of any offence under Chapter XXV to XXXI of the Penal Code and persons
accused of receiving or retaining property, possession of which is alleged to have been
transferred by any such offence committed by the first- named persons, or on abetment of or
attempting to commit either of such last-named offences;
(e) persons accused of any offence relating to counterfeit coin under Chapter XXXVI of the
Penal Code, and persons accused of any other offence under the said Chapter relating to the
same coin, or of abetment of or attempting to commit any such offence; or
(f) persons accused of any economic offence under the Economic and Organised Crime Control
Act

DUPLICITY OF CHARGE
This is when two or more offences are combined in one Count, if this happens, the Charge is
defective or duplicity. The principle is that one Count should contain one offence.

DOUBLE JEOPARDY
This is a procedural defence that prevents an accused person from being tried again on the same
(or similar) charges and on the same facts. Double jeopardy only applies to criminal cases only,
not in civil proceedings.

ALTERNATIVE COUNT
This is the remedy to Double Jeopardy as you find yourself in dilemma on which offence to
Charge the accused, then you switch to Alternative Count.

PARTICULARS OF THE ACCUSED

These are not allowed to be included in the Charge but when the Court are in need of them, they
are prepared in separate document and annexed to the Charge.

FORMAT OF CHARGE WITH JOINDER OF COUNTS, ACCUSED AND

ALTERNATIVE COUNT.

FIRST EXAMPLE
IN THE RESIDENT MAGISTRATE COURT OF DAR ES SALAAM
AT KISUTU
 CRIMINAL CASE NO...........OF 2018

REPUBLIC
V.
1. JOHN NGOSHA MASAMAKI
2. JOSEPH GODFREY MASAGA
3. IDRISSA ABDALLAH AMINI

CHARGE

1st COUNT
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT AN OFFENCE; contrary to Sections 32 of the Prevention and
Combating of Corruption Act [No.11 of 2007].

PARTICULARS OF OFFENCE
JOHN NGOSHA MASAMAKI, JOSEPH GODFREY MASAGA and IDRISSA
ABDALLAH AMINI on unspecified date between May, 2015 and April, 2018 within the City
of Dar es salaam, did conspire to commit Corruption.

2nd COUNT
STATEMENT OF OFFENCE
ABUSE OF POSITION; contrary to Sections 31 of the Prevention and Combating of
Corruption Act [No.11 of 2007].

PARTICULARS OF OFFENCE
JOHN NGOSHA MASAMAKI, JOSEPH GODFREY MASAGA and IDRISSA
ABDALLAH AMINI on unspecified date between May, 2015 and April, 2018 at the Institute
of Technology within the City of Dar es salaam, being an employees as accountants and
Directors of Finance and Planning, in discharge of their duties, they intentionally abused their
position.
 IN THE ALTERNATIVE
3rd COUNT
STATEMENT OF OFFENCE
OCCASIONING LOSS TO A SPECIFIED AUTHORITY; contrary to Paragraph 10(1) of the
First Schedule to, and Sections 57(1) and 60(2) of the Economic and Organised Crime Act [Cap
200 R.E 2002].

PARTICULARS OF OFFENCE
JOHN NGOSHA MASAMAKI, JOSEPH GODFREY MASAGA and IDRISSA
ABDALLAH AMINI on unspecified date between May, 2015 and April, 2018 at the Institute of
Technology within the City of Dar es salaam, being an employees as accountants and Directors
of Finance and Planning, in discharge of their duties, they caused the Government to suffer a
pecuniary loss of Tanzania Shillings, One hundred million only [100,000,000/=].
Dated at DAR ES SALAAM this 10th day of January, 2018
….................................
Dr. JABIRI YUSUPH KATURA,
STATE ATTORNEY

SECOND EXAMPLE
IN THE DISTRICT COURT OF TEMEKE
AT TEMEKE

ECONOMIC CASE NO...........OF 2018

REPUBLIC
Versus
1. JULIUS MKOROFI MPORIPORI
2. JOSEPH GODFREY MASAGA

CHARGE
 1st COUNT FOR 1st ACCUSED
STATEMENT OF OFFENCE
UNLAWFUL POSSESSION OF GOVERNMENT TROPHY; contrary to Sections 80(1), (2)
(c)(iii) and (3) of the Wildlife Conservation Act [No.5 of 2009].

PARTICULARS OF OFFENCE
JULIUS MKOROFI MPORIMPORI on 20th day of April, 2017 at Sandawe street, Tandika
within Temeke District in Dar es salaam Region, was found in unlawful possession of
Government Trophies.

2nd COUNT FOR 1st ACCUSED

STATEMENT OF OFFENCE
NON REGISTRATION; contrary to Sections 79(1) of the Wildlife Conservation Act [No.5 of
2009].
PARTICULARS OF OFFENCE
JULIUS MKOROFI MPORIMPORI on 24th day of April, 2017 at within the District of Meru
in Arusha Region, was found in possession of Government Trophy while not admitted a
certificate of registration in respect of the trophy.

3rd COUNT FOR 1st ACCUSED

STATEMENT OF OFFENCE
UNLAWFUL CAPTURE OF AN ANIMAL;contrary to Sections 53(1) of the Wildlife
Conservation Act [No.5 of 2009].

PARTICULARS OF OFFENCE
JULIUS MKOROFI MPORIMPORI on 27th day of April, 2017 within the District of Meru in
Arusha Region, was unlawful captured with two live cheetah.

4th COUNT FOR 2nd ACCUSED

STATEMENT OF OFFENCE
UNLAWFUL TRANSFER OF GOVERNMENT TROPHY;contrary to Sections 79(1) and
(2) of the Wildlife Conservation Act [No.5 of 2009].

PARTICULARS OF OFFENCE
JOSEPH GODFREY MASAGA, on 30th day of May, 2017 within the District of Meru in
Arusha Region, did transfered a Government Trophy to a person without a certificate of
registration.
Dated at DAR ES SALAAM this 10th day of January, 2018
….................................
Dr. JABIRI YUSUPH KATURA,
STATE ATTORNEY

5. DIRECTOR OF PUBLIC PROSECUTOR

Director Of Public Prosecutor – He is the one who institutes or undertake any criminal matter
for and on behalf of the state against any person or authority and to discontinue the same against
any person or authority.

The D P P has been given powers to confer jurisdiction upon Courts, thus D P P may order even
ordinary case tried in the ordinary Courts be tried in the Special Courts like Economic Division
for Economic and Organised Crimes, also D P P has powers to order an economic crime that is
triable in the High Court be tried by the subordinate Court as follows;-

A) CONSENT OF THE D.P.P. FOR PROSECUTIONS

As under THE ECONOMIC AND ORGANISED CRIME CONTROL ACT CAP 200
Section 26.-(1) Subject to the provisions of this section, no trial in respect of an economic
offence may be commenced under this Act save with the consent of the Director of Public
Prosecutions.

FIRST EXAMPLE
CONSENT FOR THE PROSECUTIONS
I, JABIRI YUSUPH KATURA, Director of Public Prosecutions, in terms of Section 57(1) of
the Prevention and Combating of Corruption Act, [No.11 2007] and Section 26(1) of the
Economic and Organised Crime Control Act [CAP 200 R.E 2002] DO HEREBY CONSENT to
the prosecution of JOHN NGOSHA MASAMAKI for contravening the provisions of Sections
31 and 32 of the Prevention and Combating of Corruption Act, No.11 2007 and paragraph 10(1)
of the First Schedule to and Sections 57(1) and 60(2) of the Economic and Organised Crime
Control Act [CAP 200 R.E 2002], the particulars of which are stated in the Charge.
Signed at DAR ES SALAAM this 14th day of September, 2018
….................................
Dr. JABIRI YUSUPH KATURA
DIRECTOR OF PUBLIC PROSECUTIONS.

SECOND EXAMPLE
CONSENT FOR THE PROSECUTIONS.
I, JABIRI YUSUPH KATURA, Principal State Attorney in-charge in the Attorney General's
Chambers, Dar es salaam Zonal Office duly authorised to act on behalf of the Director of Public
Prosecutions in terms of Section 26(2) of the Economic and Organised Crime Control Act [CAP
200 R.E. 2002]. DO HEREBY CONSENT to the prosecution of JOHN NGOSHA
MASAMAKI for contravening the provisions of Section 86(1) and (2)(c)(iii) of the Wildlife
Conservation Act, 2009. The particulars of which are stated in the Charge.

Signed at DAR ES SALAAM this 15th day of September, 2018

….................................
Dr, JABIRI YUSUPH KATURA,
PRINCIPAL STATE ATTORNEY IN-CHARGE

THIRD EXAMPLE
CONSENT FOR THE PROSECUTIONS.
I, JABIRI YUSUPH KATURA, Principal State Attorney in-charge in the Attorney General's
Chambers, Dar es salaam Zonal Office duly authorised to act on behalf of the Director of Public
Prosecutions in terms of Section 5(3) of the The Witchcraft Act Cap 18. DO HEREBY
CONSENT to the prosecution of JOHN NGOSHA MASAMAKI for contravening the
provisions of Section 4(a) and 5(2) of the The Witchcraft Act Cap 18. The particulars of which
are stated in the Charge.

Signed at DAR ES SALAAM this 15th day of September, 2018

….................................
Dr. JABIRI YUSUPH KATURA,
PRINCIPAL STATE ATTORNEY IN-CHARGE

b) CERTIFICATE OF ORDER FOR TRIAL

As under THE ECONOMIC AND ORGANISED CRIME CONTROL ACT CAP 200
Section 12.-(3) The Director of Public Prosecutions or any State Attorney duly authorised by
him, may, in each case in which he deems it necessary or appropriate in the public interest, by
certificate under his hand order that any case involving an offence triable by the Court under
this Act be tried by such court subordinate to the High Court as he may specify in the certificate.
(4) The Director of Public Prosecutions or any State Attorney duly authorised by him, may, in
each case in which he deems it necessary or appropriate in the public interest, by certificate
under his hand order that any case instituted or to be instituted before a court subordinate to
the High Court and which involves a non-economic offence or both an economic offence and a
non-economic offence, be instituted in the Court.

FIRST EXAMPLE
CERTIFICATE OF ORDER FOR TRIAL
I, JABIRI YUSUPH KATURA, Principal State Attorney in-charge in the Attorney General's
Chambers, Dar es salaam Zonal Office duly authorised to act on behalf of the Director of Public
Prosecutions in terms of Section 12(3) & (4) of the Economic and Organised Crime Control Act
[CAP 200 R.E. 2002]. DO HEREBY ORDER THAT the accused person JOHN NGOSHA
MASAMAKI who is charged for contravening the provisions of paragraph 10(1) of the First
Schedule to, and Section 57(1) and 60(2) of the Economic and Organised Crime Control Act
[CAP 200 R.E. 2002]. Thereof be tried by the Resident Magistrate Court of Kinondoni at
Kivukoni. The particulars of which are stated in the Charge.
 Signed at DAR ES SALAAM this 15th day of September, 2018
….................................
Dr. JABIRI YUSUPH KATURA,
PRINCIPAL STATE ATTORNEY IN-CHARGE

SECOND EXAMPLE
CERTIFICATE OF CONFERRING JURISDICTION
I, JABIRI YUSUPH KATURA, Director of Public Prosecutions in exercise of powers vested in
me by Section 12(3) & (4) of the Economic and Organised Crime Control Act [CAP 200 R.E.
2002]. DO HEREBY ORDER THAT the accused person JOHN NGOSHA MASAMAKI
who is charged for contravening the provisions of paragraph 10(1) of the First Schedule to, and
Section 57(1) and 60(2) of the Economic and Organised Crime Control Act [CAP 200 R.E.
2002]. Thereof be tried by the Resident Magistrate Court of Dar es salaam at Kisutu. The
particulars of which are stated in the Charge.
Dated at DAR ES SALAAM this 10th day of September, 2018
….................................
Dr. JABIRI YUSUPH KATURA,
PRINCIPAL STATE ATTORNEY IN-CHARGE

TRIAL PROCESS

CONTENTS
1. PLEA
2. BAIL
3. PRELIMINARY HEARING (PH)
4. COMMITTAL PROCEEDING
5. HEARING
6. FINAL SUBMISSION
7. JUDGMENT
8. APPEAL
1. PLEA
Plea – This is an accused person's formal reply to a charge in a criminal court, the choices being
guilty, not guilty, and no contest.

TYPES OF PLEA
1. PLEA OF NOT GUILTY – This is when the accused denies the charge or is not accepting
Criminal liability.

2. PLEA OF GUILTY – This is where the accused is clearly admitting the charge.

CATEGORIES OF PLEA OF GUILTY

1. EQUIVOCAL PLEA - Is a plea that is contradictory, where the defendant pleads guilty,
but adds something that indicates a defence.
e.g;- Yes I stole the money in order to buy food for my family.

2. UNEQUIVOCAL PLEA – This is a plea which is unambiguous, leaving no doubt and

intended by the accused to the offence charged.
Relevant case;-
D P P v PAUL REUBEN MAKUJAA (1992) TLR 2 (HC)
It was stated that; “Whenever there is an indication that the accused person intends to
Plea guilty, the Court should take an effort to careful explain to the accused each and
every ingredient of the offence and a plea of guilty should be entered if the accused's
replies to those explanations clearly show that he understood the nature of an offence”

LAURENCE MPINGA v REPUBLIC (1983) TLR 166 (HC)

It was Held that: The general rule is that, an appeal against a conviction based on an
unequivocal plea of guilty cannot be sustained, although an appeal against sentence may
stand;
Exception to the general rule is that, an accused person who has been convicted by any
court of an offence "on his own plea of guilty" may appeal against the conviction to a
 higher court on any of the following grounds:-
1. that, even taking into consideration the admitted facts, his plea was imperfect,
ambiguous or unfinished and, for that reason, the lower court erred in law in
treating it as a plea of guilty;
2. that he pleaded guilty as a result of mistake or misapprehension;
3. that the charge laid at his door disclosed no offence known to law; and
4. that upon the admitted facts he could not in law have been convicted of the
offence charged.

2. BAIL
Bail – This is the temporary release of an accused person awaiting trial, sometimes on condition
that a sum of money is lodged to guarantee their appearance in court.

TYPES OF BAIL
a) POLICE BAIL – Is a Bail which is given to a suspect pending investigation process OR a
suspect is released without being charged but must return to the police station at a given time.
As under THE CRIMINAL PROCEDURE ACT. CAP 20
Section 64.-(1) Without prejudice to the provisions of any other written law for the time
being in force relating to the grant of bail by police officers, a person brought under the
custody of a police officer on reasonable suspicion of having committed an offence shall
be released immediately, where–
(a) the police officer who arrested him believes that the person has in fact committed no
offence or has no reasonable grounds on which to continue holding that person in
custody;
(b) the police officer who arrested him believes that he arrested the wrong person; or
(c) after twenty-four hours after the person was arrested, no formal charge has been laid
against that person unless the police officer in question reasonably believes that the
offence suspected to have been committed is a serious one.

b) COURT BAIL – This is the Bail which is granted to the accused person pending
determination of his case.
 TYPES OF COURT BAIL
i) BAIL PENDING TRIAL
Here the suspect signs the Bail bond which is the agreement between suspect, police and
sureties.
As provided under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section.148.-(1) When any person is arrested or detained without warrant by an officer
in charge of a police station or appears or is brought before a court and is prepared at
any time while in the custody of that officer or at any stage of the proceedings before that
court to give bail the officer or the court, as the case may be, may, subject to the
following provisions of this section, admit that person to bail; save that the officer or the
court may, instead of taking bail from that person, release him on his executing a bond
with or without sureties for his appearance as provided in this section.

ii) BAIL PENDING APPEAL

This Bail is applied orally soon after entering of an appeal by a person entitled to appeal, the
Court will give out Ruling after the Prosecution side is asked whether there is any objection to
the granting of such Bail. Then the Court shall order that such person be released on bail with or
without sureties (sponsor) pending the hearing of his appeal.
As provided under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section.368.-(1) After the entering of an appeal by a person entitled to appeal, the High
Court or the subordinate court which convicted or sentenced such person may, for
reasonable cause to be recorded by it in writing–
(a) in the case of a person sentenced to a term of imprisonment, order–
(i) that such person be released on bail with or without sureties (sponsor) pending the
hearing of his appeal.

3. COMMITTAL PROCEEDINGS
Committal Proceeding - This is held by the subordinate Court for Preliminary Inquiry. The
purpose of the preliminary inquiry is to determine if there is sufficient evidence to set the
matter down for trial before a Justice of the Superior Court. The essence of committal
proceeding is provided under;-
 THE CRIMINAL PROCEDURE ACT. CAP 20.
Section.178. The High Court may inquire into and try any offence subject to its
jurisdiction in any place where it has power to hold sittings; and, except as provided
under section 93, no criminal case shall be brought under cognizance of the High
Court unless it has been previously investigated by a subordinate court and the accused
person has been committed for trial before the High Court.

Accused to be given a copy of committal proceeding;

As under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section. 249.-(1) A person who has been committed for trial before the High Court shall
be entitled at any time before the trial to have a copy of the record of the committal
proceedings without payment.

PROCEDURE UNDER COMMITTAL PROCEEDING.

i) Committal Proceeding begins after the accused is arrested or upon the completion of
investigations in respect of the commission of an offence triable by the High Court.
As under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 245.-(1) After a person is arrested or upon the completion of investigations and the
arrest of any person in respect of the commission of an offence triable by the High Court, the
person arrested shall be brought within the period prescribed under section 32 of this Act
before a subordinate court of competent jurisdiction within whose local limits the arrest was
made, together with the charge upon which it is proposed to prosecute him, for him to be
dealt with according to law, subject to this Act.

ii) The Charge for Committal proceeding shall be set out and read to the accused before
subordinate Court, the accused is not supposed to Plea or saying anything because the
subordinate Court has no jurisdiction to try the matter.
As under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 245.-(2)Whenever a person is brought before a subordinate court pursuant to
subsection (1), the magistrate concerned shall read over and explain to the accused person
the charge or charges set out in the charge sheet in respect of which it is proposed to
 prosecute the accused but the accused person shall not be required to plead or make any
reply to the charge.

As under THE CRIMINAL PROCEDURE ACT. CAP 20.

Section. 245(3) After having read and explained to the accused the charge or charges
the magistrate shall address him in the following words or words to the like effect: "This
is not your trial. If it is so decided, you will be tried later in the High Court, and the
evidence against you will then be adduced. You will then be able to make your defence
and call witnesses on your behalf".

iii) The case will be adjourned for investigation, gathering evidences and forward to the DPP for
his opinion on the following;-
1. Enter nolle prosequi (notice of abandonment) OR Order further investigation.
As under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 245(5) If the Director of Public Prosecutions or that other public officer,
after studying the police case file and the statements of the intended witnesses, is of
the view that the evidence available is insufficient to warrant the institution of a
prosecution, or it is otherwise inadvisable to prosecute, he shall, where the accused
has already been charged, immediately enter a nolle prosequi unless he has reason to
believe that further investigations can change the position, in which case he shall
cause further investigations to be carried out.
2. Draw-up Information in the presence of enough evidences.
As under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 245(6) If the Director of Public Prosecutions or that other public officer,
after studying the police case file and the statements of the intended witnesses,
decides that the evidence available, or the case as such, warrants putting the suspect
on trial, he shall draw up or cause to be drawn up an information in accordance with
law and, when signed by him, submit it together with three copies of each of the
statements of witnesses sent to him under subsection (4), including any document
containing the substance of the evidence of any witness who has not made a written
statement.
iv) After the DPP has prepared the Information and filed it to the High Court. The Registrar of
the High Court shall cause all the documents he received from the DPP to be delivered back to
the subordinate Court where the accused was presented.
As provided under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 245(7) After an information is filed in the High Court, the Registrar shall cause
a copy of it to be delivered to the district court where the accused was first presented or
within the local limits of which the accused resides.

v) The accused will be summoned to appear before the subordinate Court and will be served with
the copy of Information, notice of trial (from the court) written statements of facts and
statements of all witnesses.
As provided under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 246.-(1) Upon receipt of the copy of the information and the notice, the
subordinate court shall summon the accused person from remand prison or, if not yet
arrested, order his arrest and appearance before it and deliver to him or to his counsel a
copy of the information and notice of trial delivered to it under subsection (7) of section
245 and commit him for trial by the court; and the committal order shall be sufficient
authority for the person in charge of the remand prison concerned to remove the accused
person from prison on the specified date and to facilitate his appearance before the
court.

vi) Upon the appearance of the accused before the subordinate Court, Magistrate will read and
explain the Information as well as the written statements of facts containing evidences.
As provided under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 246.-(2) Upon appearance of the accused person before it, the subordinate court
shall read and explain or cause to be read to the accused person the information brought
against him as well as the statements or documents containing the substance of the
evidence of witnesses whom the Director of Public Prosecutions intends to call at the
trial.
 As provided under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 246.-(3) After complying with the provision of subsections (1) and (2) the court
shall address the accused person in the following words or words to the like effect:
"You have now heard the substance of the evidence that the prosecution intends to call
at your trial. You may either reserve your defence, which you are at liberty to do, or say
anything which you may wish to say relevant to the charge against you. Anything you
say will be taken down and may be used in evidence at your trial.".
(4) Before the accused person makes any statement the court shall state to him and make
him understand clearly that he has nothing to hope from any promise of favour and
nothing to fear from any threat which may have been held out to him to induce him to
make any admission or confession of his guilt, but that whatsoever he then says may be
given in evidence on his trial notwithstanding the promise or threat.
(5) Everything that the accused person says shall be recorded in full and shall be shown
or read over to him and he shall be at liberty to explain or add to anything contained in
the record thereof.
(6) When the record of the statement,if any, made by the accused person is confirmed to
be what he declares is the truth, the record shall be attested by the magistrate who shall
certify that the statement was taken in his presence and hearing and contains accurately
the whole statement made by the accused person; and the accused person shall sign or
attest the record by his mark but if he refuses the court shall record his refusal and the
record may be used as if the accused had signed or attested it.

A Committal Order – This is issued for committing the accused to the High Court for trial as
provided under;-
THE CRIMINAL PROCEDURE ACT. CAP 20.
Section. 256A.-(1) 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 granted
under subsection (1) of section 173.

This Committal Order is done on the extended Jurisdiction invested on the Magistrate along
with what is provided under;
THE CRIMINAL PROCEDURE ACT. CAP 20.
Section. 173.-(1) The Minister may after consultation with the Chief Justice and the
Attorney General, by order published in the Gazette–
(a) invest any resident magistrate with power to try any category of offences which, but
for the provisions of this section, would ordinarily be tried by the High Court and may
specify the, area within which he may exercise such extended powers; or
(b) invest any such magistrate with power to try any, specified case or cases of such
offences and such magistrate shall, by virtue of the order, have the power, in respect of
the offences specified in the order to impose any sentence which could lawfully be
imposed by the High Court.

4. DRAFTING INFORMATION

FIRST EXAMPLE;-
IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM

CRIMINAL SESSION NO........................OF 2018

REPUBLIC
V
HASSAN MUSSA MWAKINYO

The ....................................... day of ........................................... 20......................................

At the sessions holden at............................on the .............. day of...…......20............. the
Court is informed by the Director of Public Prosecutions on behalf of the United Republic, that
HASSAN MUSSA MWAKINYO is charged with the following offence;

STATEMENT OF OFFENCE
MANSLAUGHTER; contrary to Sections 195 of Penal Code [Cap.16 R.E 2002], read together
with Section 198 of Penal Code [Cap.16 R.E 2002].

PARTICULARS OF OFFENCE
HASSAN MUSSA MWAKINYO, on 15th day of August, 2018 at around 20:30 hours Sinza
Madukani within Kinondoni District in Dar es salaam, did unlawful kill one ATHUMANI IDDI
BATAMBUZE.
Dated at DAR ES SALAAM this 19th day of September, 2018
….................................
Dr. JABIRI YUSUPH KATURA,
STATE ATTORNEY

Presented for filing this ….........................day of...............................2018

…............................
REGISTRY OFFICER

SECOND EXAMPLE;-
IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA
(ARUSHA DISTRICT REGISTRY)
AT ARUSHA

CRIMINAL SESSION NO........................OF 2018

REPUBLIC
V
PAUL DICKSON BAKILANA

The ....................................... day of ........................................... 20.........

At the sessions holden at............................on the .............. day of...…......20............. the
Court is informed by the Director of Public Prosecutions on behalf of the United Republic, that
PAUL DICKSON BAKILANA is charged with the following offence;
 STATEMENT OF OFFENCE
MURDER; contrary to Sections 195 of Penal Code [Cap.16 R.E 2002], read together with
Section 198 of Penal Code [Cap.16 R.E 2002].

PARTICULARS OF OFFENCE
PAUL DICKSON BAKILANA, on 25th day of February, 2018 at White Rose Sakina Area
within the City of Arusha in Arusha Region, did murder one ALPHONCE MARWA CHAMA.
Signed at DAR ES SALAAM this 19th day of September, 2018
….................................
Dr. JABIRI YUSUPH KATURA,
STATE ATTORNEY

Presented for filing this ….........................day of...............................2018

…............................
REGISTRY OFFICER

PRELIMINARY HEARING (PH)

Preliminary Hearing - Is the stage in Criminal Trial which occurs after the completion of
investigation and before the case has started, whereby the 'statement of facts' which includes
intended evidences and intended witnesses who are going to be used by the Prosecution side,
here the accused is given opportunity to admit part or all of the statement of facts.

PROCEDURE OF PRELIMINARY HEARING (PH)

In Preliminary Hearing the prosecution prepares and files a written 'statement of facts' which
includes the list of intended witnesses and list of intended exhibit for the prosecution side then
the accused side will be submitted with the copy.

At the Preliminary Hearing date the prosecutor will read the 'Statement of facts' to the accused
then the Court will ask the accused if there is facts which he admits and the Court will record all
admitted facts and mark them as proved and not disputed. Thereafter the Court will prepare
'Memorandum of the agreed facts' which must be signed by the Prosecutor, the accused or his
advocate (if any) and the Court. That is the end of Preliminary Hearing.

As under THE CRIMINAL PROCEDURE ACT. CAP 20.

Section 192.-(1) Notwithstanding the provisions of section 229, if an accused person pleads not
guilty the court shall as soon as is convenient, hold a preliminary hearing in open court in the
presence of the accused or his advocate (if he is represented by an advocate) and the public
prosecutor to consider such matters as are not in dispute between the parties and which will
promote a fair and expeditious trial.
(2) In ascertaining such matters that are not in dispute the court shall explain to an accused who
is not represented by an advocate about the nature and purpose of the preliminary hearing and
may put questions to the parties as it thinks fit; and the answers to the questions may be given
without oath or affirmation.
(3) At the conclusion of a preliminary hearing held under this section, the court shall prepare a
memorandum of the matters agreed and the memorandum shall be read over and explained to
the accused in a language that he understands, signed by the accused and his advocate (if any)
and by the public prosecutor, and then filed.
(4) Any fact or document admitted or agreed (whether such fact or document is mentioned in the
summary of evidence or not) in a memorandum filed under this section shall be deemed to have
been duly proved; save that if, during the course of the trial, the court is of the opinion that the
interests of justice so demand, the court may direct that any fact or document admitted or agreed
in a memorandum filed under this section be formally proved.
(5) Wherever possible, the accused person shall be tried immediately after the preliminary
hearing and if the case is to be adjourned due to the absence of witnesses or any other cause,
nothing in this section shall be construed as requiring the same judge or magistrate who held the
preliminary hearing under this section to preside at the trial.
(6) The Minister may, after consultation with the Chief Justice, by order published in the Gazette
make rules for the better carrying out of the purposes of this section and without prejudice to the
generality of the foregoing, the rules may provide for–
(a) delaying the summoning of witnesses until it is ascertained whether they will be
 required to give evidence on the trial or not;
(b) the giving of notice to witnesses warning them that they may be required to attend
court to give evidence at the trial.

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA

(ARUSHA DISTRICT REGISTRY)
AT ARUSHA

CRIMINAL SESSION NO........................OF 2018

REPUBLIC
V
DANIEL OLE NJORAY …..............................................................................ACCUSED

Memorandum of the matters agreed upon at the preliminary hearing

(Section 192(3)(4) and (6))

The following are the matters agreed upon during the preliminary hearing of this case to be
matters not in dispute:
1. The fact that .......................................................................................
1. The fact that ......................................................................................
2. The fact that .......................................................................................
3. The fact that .......................................................................................
4. The document namely ...........................................................................
5. The document namely............................................................................
6. The object namely.................................................................................
7. The object namely ................................................................................
The Memorandum of the matters and contents of the document(s) have been read over and
explained to the accused.
Signature of prosecutor .............................................................................
Date.......................................................................................................
Signature of Accused ................................................................................
Date.......................................................................................................
Signature of the Advocate for the Accused (if
any)....................................................
Date.....................................................
.....................................................
Judge/Magistrate
Date.............................................

APPEAL

There can not be any Appeal which is not provided by the Statute. The High Court derives its
appellate jurisdiction in the CPA and the MCA.
As under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 361.-(1) Subject to subsection (2), no appeal from any finding, sentence or order
referred to in section 359 shall be entertained unless the appellant–
(a) has given notice of his intention to appeal within ten days from the date of the finding,
sentence or order or, in the case of a sentence of corporal punishment only, within three days of
the date of such sentence; and
(b) has lodged his petition of appeal within forty-five days from the date of the finding, sentence
or order,
(c) save that in computing the period of forty-five days the time required for obtaining a copy of
the proceedings, judgment or order appealed against shall be excluded.
(2) The High Court may, for good cause, admit an appeal notwithstanding that the period of
limitation prescribed in this section has elapsed.

DRAFTING NOTICE OF INTENTION TO APPEAL

EXAMPLE;-
IN THE RESIDENT MAGISTRATE’S COURT OF DAR ES SALAAM
AT KISUTU
 CRIMINAL APPEAL No. ………… OF ………………….2018

MUSSA MAKOTA
V.
REPUBLIC

NOTICE OF INTENTION APPEAL

NOTICE is hereby given that the appellant above named MUSSA MAKOTA, being aggrieved
by the judgment and sentence of the Resident Magistrate's Court of Dar es salaam dated 24th
August, 2018 and delivered by Hon.J.KATURA, RM intends to appeal to the High Court of
Tanzania against the whole of the said Judgment and sentence.

Dated at Dar es salaam this....................................day of...............................................2018

….............................................
APPELLANT/ADVOCATE FOR THE APPELLANT

Presented for filing this.............................................day of.............................................2018

…..............................
COURT CLERK

COPY TO SERVED UPON;

Director of Public Prosecutions
Attorney General's Chambers
Kivukoni Front,
DAR ES SALAAM.

DRAWN AND FILED BY;

Mussa Makota
Appellant
DAR ES SALAAM.

DRAFTING PETITION OF APPEAL

EXAMPLE;-
IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM

CRIMINAL APPEAL No. ………… OF ………………….2018

 MUSSA MAKOTA
V
REPUBLIC

PETITION OF APPEAL
(Originated from Resident Magistrate Court of Dar es salaam at Kisutu, Criminal case
no.188 of 24th August, 2018)

The Appellant above named MUSSA MAKOTA, being aggrieved by the judgment and sentence
of the Resident Magistrate's Court of Dar es salaam dated 24th August, 2018 and delivered by
Hon.J.KATURA, RM, appeals to the High Court of Tanzania against the whole of the said
Judgment and sentence on the following grounds;-

1. That, the learned trial Magistrate erred in Law and facts in convincing the Appellant
while the available evidences failed to establish the case against the Appellant beyond
reasonable doubt.
2. That, the learned trial Magistrate erred in Law and facts in admitting the evidences of the
Prosecution witnesses 2 and 3 which their evidences were totally irrelevant and
prejudicial to the Appellant.
3. That, the learned trial Magistrate erred in Law and facts in allowing Prosecution witness
7 to tender PF3 report as an exhibit without giving defense an opportunity to cross
examine the maker of the report.
WHEREFORE, the Appellant prays that the conviction be quashed and set aside the sentence.

Dated at Dar es salaam this..............................day of …................................................2018

…...................................
APPELLANT/ADVOCATE FOR THE APPELLANT

Presented for filing this.....................................day of....................................................2018

…...........................................
REGISTRY OFFICER

COPY TO SERVED UPON;

Director of Public Prosecutions
Attorney General's Chambers
Kivukoni Front,
DAR ES SALAAM.

DRAWN AND FILED BY;

Mussa Makota
Appellant
DAR ES SALAAM.

SECOND EXAMPLE;-
IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM

ECONOMIC APPEAL No.………… OF ………………….2018

(Originated from Resident Magistrate Court of Dar es salaam at Kisutu, Economic Crime
Case no.64, Judgment of Hon.Katura, PRM dated 13th September, 2018)

BUNDALA KIPANGA
V
THE REPUBLIC

PETITION OF APPEAL

The Appellant above named BUNDALA KIPANGA, being aggrieved by the judgment and
sentence of the Resident Magistrate's Court of Dar es salaam dated 13th August, 2018 and
delivered by Hon.J.KATURA, PRM, appeals to the High Court of Tanzania against the whole
of the said Judgment and sentence on the following grounds;-

1. That, the learned Principal Resident Magistrate Court erred in Law and facts in trying
and convincing the Appellant on defective and ambiguous charge.

2. That, the learned Principal Resident Magistrate Court erred in Law and facts in trying
and convincing the Appellant on absence of credible and sufficient evidence of
involvement in any corrupt practice.

3. That, the learned Principal Resident Magistrate Court grossly misdirected himself in law
and fact by associating the appellant with Plot no.874 and 83 Block D Msasani contrary
to available evidences.

4. That, the sentence is excessive in the circumstances of this case.

WHEREFORE, the Appellant prays that the conviction be quashed and set aside the sentence.

Dated at Dar es salaam this..............................day of …................................................2018

 …...................................
APPELLANT/ADVOCATE FOR THE APPELLANT

Presented for filing this.....................................day of....................................................2018

…...........................................
REGISTRY OFFICER

COPY TO SERVED UPON;

Director of Public Prosecutions
Attorney General's Chambers
Kivukoni Front,
DAR ES SALAAM.

DRAWN AND FILED BY;

BUNDALA KIPANGA
Appellant
DAR ES SALAAM.

Relevant Case
D P P v A.M. SWAI (1989) TLR 37 (HC)
It was Held that: There is no indication at all that any oral notice of intention to appeal was
given by the Republic; therefore a letter applying for copies of proceedings and judgment for
appeal purposes is different from a notice of intention to appeal as envisaged by the law. The
letter applying for proceedings and judgment for appeal presupposes that a notice has already
been given;
As no notice of intention to appeal was given the application for leave to appeal out of time
cannot be entertained.
Application dismissed.

TYPES OF APPEAL
1. FIRST APPEAL – This is the Appeal from subordinate Court to the High Court.
As under THE CRIMINAL PROCEDURE ACT. CAP 20.
Section 359.-(1) Save as hereinafter provided, any person aggrieved by any finding,
sentence or order made or passed by a subordinate court other than a subordinate court
exercising its extended powers by virtue of an order made under section 173 of this Act
 may appeal to the High Court and the subordinate court shall at the time when such
finding, sentence or order is made or passed, inform that person of the period of time
within which, if he wishes to appeal, he is required to give notice of his intention to
appeal and to lodge his petition of appeal.
(2) Any appeal to the High Court may be on a matter of fact as well as on a matter of
law.

2. SECOND APPEAL – This is the Appeal from Primary Court

As under THE MAGISTRATES' COURTS ACT CAP 11
Section 25.- (2) The Minister may make regulations prescribing the procedure for
appeals from district courts by a complainant other than the Director of Public
Prosecutions against the decision or order of a district court confirming the acquittal of
any person by the primary court or where a district court substitutes an acquittal for a
conviction.
(3) Every appeal to the High Court shall be by way of petition and shall be filed in the
district court from the decision or order in respect of which the appeal is brought:
Provided that the Director of Public Prosecutions may file an appeal in the High
Court and, where he so files an appeal, he shall give notice thereof to the district
court and the district court shall forthwith dispatch the record of proceedings in
the primary court and the district court to the High Court.

ORDERS WHICH ARE NOT APPEAL ABLE

1. Plea of guilty – Accepting responsibilities of an offence
As under THE CRIMINAL PROCEDURE ACT CAP 20
Section 360.-(1) No appeal shall be allowed in the case of any accused person who
has pleaded guilty and has been convicted on such plea by a subordinate court except
as to the extent or legality of the sentence.

As under THE MAGISTRATES' COURTS ACT CAP 11

Section 20.-(2) No appeal shall be allowed–
(a) in any case of an accused person convicted on his own plea of guilty, except
 against sentence or an order for the payment of compensation;

LAURENCE MPINGA v REPUBLIC (1983) TLR 166 (HC)

It was Held that: An appeal against a conviction based on an unequivocal plea of
guilty generally cannot be sustained, although an appeal against sentence may stand;
An accused person who has been convicted by any court of an offence "on his own
plea of guilty" may appeal against the conviction to a higher court on any of the
following grounds:-
(1) that, even taking into consideration the admitted facts, his plea was imperfect,
ambiguous or unfinished and, for that reason, the lower court erred in law in treating
it as a plea of guilty;
(2) that he pleaded guilty as a result of mistake or misapprehension;
(3) that the charge laid at his door disclosed no offence known to law; and
(4) that upon the admitted facts he could not in law have been convicted of the
offence charged.

2. An interlocutory order - an appeal does not lie from an interlocutory orders.

ANDERSON SOLOMON v REPUBLIC (1994) TLR 119 (CA)
It was Held that: It is settled law that in criminal cases, an appeal does not lie from
an interlocutory order and the application before the High Court should have been
rejected with directions to the District Court to continue with the case; accordingly,
there is no legal basis upon which to entertain this appeal.

ESSENTIAL MATTERS ON APPEAL

1 - When aggrieved party wants to appeal for the matter originating from Primary Court, he
appeals to the District Court and the law governs this appeal is Magistrates' Courts Act.

2 - When the District Courts or Resident Magistrates' Courts exercising their original
jurisdiction, the law governs this exercise is Criminal Procedure Act. And when the District
Court exercises its Appellant jurisdiction, the law which governs this exercise is Magistrates'
Courts Act.

3 – When aggrieved party wants to appeal but he is out of time. What is needed to do is to
prepare the Application, which is Chamber summons & Affidavit with two phrases (prayers);-
1. A leave to be granted for extension of time to file notice of intention to appeal as there is
no criminal appeal without it.
2. And time to be extended for filing a petition of appeal.

THE CRIMINAL PROCEDURE ACT CAP 20 as amended by Act no.3 of 2011

Section 392A-(1) Every application under this Act shall be made before a court either
orally or in written form.
(2) An application made in written form shall be by way of a chamber summons
supported by affidavit.

EXTRADITION
Extradition is governed by international treaties, bilateral or multilateral, enshrining the legality
principle, " nulla extraditio sine lege " means "no extradition without a law", a version of "
nullum crimine nulla pena sine lege ” means "no crime and no penalty without a law".
As under THE EXTRADITION ACT CAP 368
Section 2. “extradition crime" means a crime which, if committed within the jurisdiction of
Tanzania, would be one of the crimes described in the Schedule to this Act;
"fugitive criminal" means any person accused or convicted of an extradition crime committed
within the jurisdiction of any other country who is in or is suspected of being in Tanzania, and a
reference to a fugitive criminal of a country is a reference to a fugitive criminal accused or
convicted of an extradition crime committed within the jurisdiction of that country;

EXTRADITION CONCEPTS
1. Deportation
Deportation can be referred to as the formal removal of an alien from a State where the alien has
been found removable for violating immigration laws of the State process used by the
immigration department and is aimed at reducing and controlling the number of illegal
immigrant.
2. Repatriation
Repatriation is derived from Latin word repatriare used to refer to the process of returning a
person back to one's place of origin or citizenship. It involves the voluntary return of persons
especially refugees to their countries. This exercise is unique as it normally involves cooperation
from the refugee or person to be returned, the country of asylum, the country of origin, certain
international organizations such as the United Nation High Commission
on Refugee and intergovernmental organizations.
It was largely manifested after the First World War as a response to the prisoners of war who had
been widely displaced during the war wanting to return home.

3. Dual Criminality
Double Criminality or dual criminality refers to the substantive requirement of the extradition
law that the offence for which the person is being extradited must be considered criminal under
the laws of both the requested country and the requesting country.

4.The Rule of Specialty

The rule of specialty is the principle which limits the number of charges upon which an
extradited suspect may be charged and tried. It prevents the requesting State from prosecuting
the suspects for crimes not included in the extradition request and or warrant of extradition, even
if evidence for those other crimes is available.

5. Political Offence
Political Offence is a standard defence found in extradition treaties. This rule was fully embraced
in the nineteenth century when the governments of the new liberal democracies refused to return
political rebels to the governments they had rebelled against or to the authoritarian States that
requested for them. This is simply because; a person who commits political offences should not
be extradited to be tried by the victims of those offences.
Also that States should not interfere or intervene in the internal political conflicts of other States
by assisting in extraditing of political opponents of the government.
6. The Principle of Reciprocity
The principle of reciprocity is one of the fundamental bases on which extradition is viable.
It is a principle based on the notion that a requested State will surrender fugitives to the
requesting State for as long as its own requests for fugitives will be honored by the requesting
State.

7. Double Jeopardy
Double jeopardy principle seeks to avoid duplication of punishments. It is aimed at protecting a
person who has already been acquitted or pardoned of the offence, or has undergone the
punishment for the offence from being extradited. There is no uniformity in the application of
this principle. Some States apply a very broad construction whereas some apply a very narrow
one. On the other hand others have created broad exceptions to the principle which allow for trial
twice for the same conduct in certain circumstances.

DRAFTING LETTER OF REQUEST FOR EXTRADITION

THE UNITED REPUBLIC OF TANZANIA

MINISTRY OF FOREIGN AFFAIRS AND EAST AFRICAN COOPERATION
LAPF Building 6th Floor, Makole Road
P.O.BOX 8479, DODOMA.

TO
The Republic Of Mozambique,
The Minister For Foreign Affairs,
C/- The Ministry Of Home Affairs,
Level 12, Matola House,
Maputo.
Mozambique.

REQUEST FOR EXTRADITION OF LADISLAUS MASAGA NGOSHA

I KATURA KATURA , The Minister of The United Republic of Tanzania, refer to the Treaty
on Extradition between The Republic of Mozambique and The United Republic of Tanzania,
London Scheme Extradition agreed at Kingstown in November 2002 and, pursuant to that Treaty
(to which The United Republic of Tanzania has succeeded), formally request the extradition
from the Republic of Mozambique of LADISLAUS MASAGA NGOSHA also known as
MKALI WAO, who is wanted in United Republic of Tanzania for the following offences:-
1. Murder, Contrary to Sections 196 and 197 of the Penal Code Cap.16 R.E 2002,
2. Assaults causing actual bodily harm, Contrary to Section 241 of the Penal Code Cap.16
R.E 2002.
A warrant for the arrest of LADISLAUS MASAGA NGOSHA for these offences was issued by
Resident Magistrate of The Resident Magistrate Court of Dar es salaam at Kisutu on 22 nd
September, 2018 . This warrant of arrest remains in full force and effect.
I enclose, in support of this extradition request, a set of documents that has been authenticated in
accordance with the requirements of the Treaty and the Extradition Act Cap 368 of the United
Republic of Tanzania, together with two copy sets. The set of supporting documents includes;-
1. A copy of the warrant for arrest,
2. Charge,
3. Extract of Law,
4. Affidavit of Chief Investigation,
5. The conduct constituting the offence.
I would be grateful if this request and the enclosed supporting documents could be transmitted to
the competent Republic of Mozambique authorities for action in accordance with the Treaty, and
that my officials be kept informed of progress in dealing with the request.
The contact person is;-
Mugishagwe Jabiri,
Attorney General,
+255 768 369 848,
[email protected].

Signed at Dar es salaam this 22nd day of September 2018.

…...........................
kazungu
MINISTER OF FOREIGN AFFAIRS.

ASANTE SANA.
By
Mimi mwenyewe