Abdallah Ally Mbiku vs Republic (Criminal Appeal 520 of 2021) [2023] TZCA 155 (29 March 2023)

Case summary

The case involves Abdallah Ally Mbiku, who was charged with the crime of incest and alternatively with rape, under the Penal Code. The allegations were based on the claim that he had sexual intercourse with his daughter, a 15-year old minor, referred to as KXX in the judgment. The appellant was convicted on both counts by the District Court of Kilwa and sentenced to 30 years imprisonment, running concurrently.

The appellant appealed to the High Court, arguing that the trial court convicted and sentenced him based on weak evidence. The High Court dismissed the appeal but reversed the conviction and sentence on the count of rape, sustaining the conviction and sentence on the principal count of incest.

The appellant then appealed to the Court of Appeal, raising several grievances. However, the Court of Appeal found a significant error in the trial process. According to section 231(1) of the Criminal Procedure Act (CPA), after the prosecution case is closed and the court determines that the defendant has a case to answer, the court is required to address the defendant on the substance of the charge and inform him of his right to give evidence on or not on oath or affirmation on his own behalf and to call witnesses in defence. The Court of Appeal found that the trial court did not comply with this requirement, which was a fatal error that affected the fairness of the trial.

Citing several precedents, the Court of Appeal stated that noncompliance with section 231(1) of the CPA vitiates all subsequent proceedings. Therefore, the Court of Appeal nullified all the proceedings of the trial court after the ruling on a prima facie case to answer, along with the judgment, and quashed the convictions and sentences. The Court of Appeal also nullified the proceedings of the first appellate court and its judgment dismissing the appellant's appeal.

The Court of Appeal ordered that the record be remitted to the trial court for hearing of the defence case after complying with section 231(1) of the CPA, preferably by another magistrate.

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