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Citation
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Judgment date
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| September 2013 |
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A subordinate court trial without DPP consent or transfer certificate is a nullity and must be quashed.
Criminal jurisdiction — Economic and Organized Crime Control Act — exclusive High Court jurisdiction for economic offences; requirement of Director of Public Prosecutions’ written consent or transfer certificate for subordinate court trials — absence renders proceedings a nullity; appellate proceedings from a nullity are void; Court of Appeal revisional powers under Appellate Jurisdiction Act s.4(2).
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26 September 2013 |
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Failure to arraign the accused at trial by reading the charge rendered the trial a nullity and warranted retrial.
Criminal procedure – Arraignment – requirement to read and explain charge at trial commencement (s275(1)) – Preliminary hearing distinct from trial (s192(5)) – Failure to arraign as fatal irregularity – Not curable under s388 – Trial de novo ordered.
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26 September 2013 |
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Absence of DPP consent and transfer certificate renders economic‑offence trial null; proceedings quashed and appellant released.
Economic offences — jurisdiction — mandatory DPP written consent (s.26(1) Economic and Organized Crime Control Act) — mandatory certificate of transfer for subordinate courts (s.12(3)) — non‑compliance renders proceedings nullity ab initio — quashing of proceedings and release instead of retrial.
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26 September 2013 |
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A child complainant's credible testimony of penetration can suffice to convict for rape despite lack of sperm evidence and s.240(3) omission.
* Criminal law – Rape – Evidence of penetration – Complainant of tender years can, by credible testimony, establish penetration under section 130(4)(a). * Evidence Act s.127(7) – Child witness – credibility and sufficiency of testimony. * Forensic evidence (sperm) not essential where penetration is proved. * Criminal Procedure Act s.240(3) – non‑compliance noted but not necessarily fatal. * Corroboration – victim's testimony may be sufficient; alleged extra‑judicial statements irrelevant if not material.
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26 September 2013 |
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Nighttime visual identification based on an alleged kerosene lamp was found unreliable and convictions quashed.
* Criminal law – visual identification – nighttime identification alleged to be from a kerosene lamp – reliability and safeguards required. * Evidence – afterthoughts and contradictory testimony on illumination undermine visual identification. * Appellate review – misdirection on material factual finding occasioning miscarriage of justice warrants interference.
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26 September 2013 |
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Recent possession of deceased’s bicycle upheld as sufficient link; appellant failed to give a reasonably probable explanation.
Criminal law – murder – circumstantial evidence – doctrine of recent possession – proof of ownership of recovered property – requirement of reasonably probable explanation to rebut presumption – identification by prior description and witness corroboration.
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26 September 2013 |
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Failure to read and explain the charge at trial commencement is a fundamental, incurable procedural nullity.
Criminal procedure – arraignment and plea – section 275(1) Criminal Procedure Act – mandatory reading and explanation of information at commencement of High Court trial – distinction between preliminary hearing and trial (s192(5)) – omission fatal and incurable under s388 – trial de novo ordered.
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25 September 2013 |
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Failure by the appellant to specify the conviction, sentence or order in the notice of appeal renders the appeal incompetent and struck out.
Court of Appeal procedure – Notice of appeal – Mandatory requirement to state conviction, sentence, order or finding appealed against (Rule 68(2) CAR 2009) – Defective notice renders appeal incompetent and liable to be struck out; typographical errors in heading may be corrected under Rule 20 CAR 2009.
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25 September 2013 |
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A judgment that omits a formal conviction is a nullity and consequent appeals based on it are void; record remitted for conviction entry.
* Criminal procedure – Judgment requirements – Sections 235(1) and 312(1) Criminal Procedure Act – necessity of formal conviction and written reasons.
* Appeal – Nullity of proceedings – Sentencing without conviction renders trial and subsequent appellate proceedings a nullity.
* Appellate jurisdiction – Remittal of record to trial court to enter conviction under s.4(2) Appellate Jurisdiction Act.
* Evidentiary issues raised (medical report admissibility, confession, delay/credibility) were noted but not finally determined.
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25 September 2013 |
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Identification in daylight and an unobjected-to cautioned statement supported the appellant's armed robbery convictions.
* Criminal law – Identification evidence – familiar person identified in daylight at close range – reliability and earliest opportunity to name to police.
* Criminal procedure – Cautioned statement – admissibility and voluntariness – section 169 procedures to be invoked at trial; objection not entertainable for first time on appeal.
* Evidence – No requirement for corroboration of a cautioned statement; it may stand alone.
* Evidence – Browne v Dunn principle: failure to cross-examine equals acceptance of unchallenged damaging evidence.
* Criminal procedure – Preliminary hearing under section 192 CPRA: purpose to streamline trials (obiter comment).
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25 September 2013 |
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The applicant's rape conviction upheld despite expunging the PF3 for non‑compliance with section 240(3).
Criminal law – Rape – Penetration established by eyewitness accounts; slightest penetration sufficient; absence of semen irrelevant. Evidence – PF3 (medical report) inadmissible without compliance with s.240(3) Criminal Procedure Act and must be expunged. Criminal procedure – Mis‑description of statutory provision in charge (SOSPA s.5 vs Penal Code) curable under s.388 CPA. Evidence of victim's age – established by charge and sworn testimony when not contested at trial.
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25 September 2013 |
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Conviction quashed where prosecution failed to disprove appellants' innocent explanation and recent possession doctrine misapplied.
Criminal law – robbery with violence – sufficiency of evidence – doctrine of recent possession – accused’s reasonably probable explanation – corroboration by village witnesses – compliance with s.231 Criminal Procedure Act.
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25 September 2013 |
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Cautioned statement improperly admitted without voluntariness inquiry and nighttime identification evidence was insufficient; conviction unsafe.
* Criminal procedure – admissibility of cautioned statement – accused alleges torture – subordinate court must suspend proceedings and hold inquiry into voluntariness (s.27 Evidence Act) before admitting statement.
* Criminal evidence – identification at night – witnesses must describe source and intensity of light and distance to avoid mistaken identity.
* Conviction unsafe where caution statement improperly admitted and identification evidence deficient.
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25 September 2013 |
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High Court's decision in appellant's absence violated ss.365 and 366(2)(a) CPA; judgment quashed and appeal reinstated.
Criminal procedure — Right to be heard — Sections 365 and 366(2)(a) Criminal Procedure Act — Hearing in appellant's absence without ascertaining service — Fundamental breach renders decision a nullity — High Court judgment quashed and appeal reinstated.
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24 September 2013 |
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Victim’s testimony, supported by rescuers, sufficed to prove rape; conviction and 30-year sentence upheld.
Criminal law – Rape – Victim's testimony can suffice to prove penetration and lack of consent – PF3 expunged but penetration proved by prosecutrix – No mandatory corroboration required; s.143 Evidence Act – Identification and corroboration by rescuers.
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23 September 2013 |
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Unexplained delay, custody alibi, witness contradictions and omitted particulars created reasonable doubt—conviction quashed.
Criminal law – Armed robbery – Reasonable doubt – Unexplained delay in charging; alibi of custody; contradictions between witnesses; omission in particulars of offence – Benefit of doubt and quashing of conviction.
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20 September 2013 |
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Appeal dismissed; conviction and 30-year sentence for robbery with violence upheld.
Criminal law – robbery with violence – sufficiency of prosecution evidence; identification of stolen property where items not recovered; evaluation of accused’s defence; Minimum Sentences Act – thirty-year minimum where robbery committed in company; sentencing principles.
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19 September 2013 |
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Conviction quashed where night-time visual and voice identification evidence was inadequately particularised and unreliable.
Criminal law – Evidence – Visual identification at night – necessity to state source, intensity and distance of light – danger of mistaken identity; Voice identification – risk and requirement of proven familiarity.
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17 September 2013 |
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A defective notice of appeal breaching Rule 61(2) is incompetent; Court may suo motu revise High Court errors.
* Criminal procedure – notice of appeal – Rule 61(2) C.A. Rules – mandatory requirement to state briefly nature of conviction and sentence – failure renders appeal incompetent.
* Criminal law – appellate substitution – when a court finds an accused guilty of a lesser offence it must formally convict before sentencing.
* Appellate jurisdiction – revisional powers – s.4(3) Appellate Jurisdiction Act – Court of Appeal may suo motu call for and examine High Court record to correct errors apparent on face of record.
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17 September 2013 |
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17 September 2013 |
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Statutory rape conviction upheld: victim's unchallenged age and testimony sufficient; DNA unnecessary; cautioned statement admissible.
* Criminal law – Statutory rape – proof of age: age proved by charge sheet and uncontradicted testimony; birth certificate not essential.
* Evidence – Cautioned statement – admissibility: no objection at trial; allegation of torture treated as afterthought.
* Evidence – DNA: paternity/DNA evidence not necessary to sustain rape conviction where victim is under 18 and consent is irrelevant.
* Appeal – Conviction safety: unanimous affirmation of conviction and sentence where complainant's evidence was credible and unchallenged.
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17 September 2013 |
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Plea of guilty held unequivocal; facts disclosed armed robbery and thirty-year statutory sentence valid.
Criminal law – plea of guilty – when appeal permissible; Plea equivocal – fear of torture and language barriers; Armed robbery – ingredients under section 287A; Sentence – statutory minimum not illegal or excessive.
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17 September 2013 |
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Appeal allowed; conviction and sentence quashed for trial defects and appellate misdirection about weapon use.
Criminal law – robbery vs armed robbery – appellate misdirection where sentence enhanced for use of weapon without reversing trial court’s contrary factual finding; identification and chain of custody – necessity for clear evidence of ownership and exhibit handling; appellate exercise of revisionary powers where trial marred by defects and remittal would be futile.
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17 September 2013 |
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Conviction quashed where child‑witness evidence lacked required voire dire and prosecution had no competent evidence.
Criminal law – Rape – Evidence of child of tender years – Voir dire under s.127(2) & (5) Evidence Act – Failure to conduct voir dire renders evidence inadmissible; Effect of expunged prosecution evidence; Defence admissions insufficient to replace absent prosecution case; Proof of penetration (medical/independent evidence).
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17 September 2013 |
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A notice of appeal omitting the nature of the conviction is a fatal defect and renders the appeal incompetent.
Criminal procedure – Notice of appeal – Rule 61(2) Court of Appeal Rules, 1979 – Mandatory requirement to state nature of conviction – omission fatal; appeal incompetent and liable to be struck out; protestations that documents were prepared by prison authorities do not cure the defect.
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17 September 2013 |
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Trial for an economic offence without DPP consent or transfer certificate renders conviction a nullity.
Criminal law — Economic offences — Unlawful possession of firearms under Arms and Ammunition Act as economic offence — Requirement of DPP consent or transfer certificate under Economic and Organised Crimes legislation; Jurisdiction — Competence of subordinate court to try economic offences without DPP consent — Effect of absence of consent: nullity; Joinder of counts — Impropriety of combining ordinary criminal count with economic offence without statutory transfer; Appeals — Jurisdictional defects may be raised at any stage, including on appeal.
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17 September 2013 |
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Conviction quashed where statutory procedures for deaf‑dumb witness, medical report and tendering of exhibits were not followed, leaving penetration unproved.
Criminal law – Rape – requirement of proof of penetration; Evidence Act s.128 – procedure for deaf and dumb witnesses (signs/written evidence in open court and record); Evidence Act s.34B – admissibility of statements by persons other than makers; Criminal Procedure Code s.240(3) – tendering medical reports; admissibility and weight of exhibits; miscarriage of justice where essential procedures not followed.
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17 September 2013 |
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Conviction for rape upheld; PF3 expelled for non-compliance with section 240(3), but remaining evidence proved guilt.
* Criminal law – Rape – Requirement that victim give direct evidence of penetration and lack of consent – Corroboration by witnesses describing flight and apprehension. * Evidence – Admissibility of PF3 – Mandatory compliance with section 240(3) of the Evidence Act; non-compliance leads to expungement. * Appellate review – Reluctance to disturb concurrent findings of fact absent misdirection or glaring error.
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17 September 2013 |
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16 September 2013 |
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Second appeal dismissed: identification and procedural complaints insufficient to overturn conviction.
* Criminal law — Armed robbery — Identification at scene — Victim’s detention of suspect and corroboration by witnesses validates identification. * Criminal procedure — Burden of proof — Prosecution discharged burden where force and stealing were credibly proven. * Criminal appeal — Second appeal limitations — New grounds not raised in first appeal struck out. * Preliminary hearing — Defects or non-participation do not vitiate trial if trial follows correct procedure. * Right to be heard — Appellant afforded opportunity to argue first appeal as shown on record.
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16 September 2013 |
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Conviction quashed where child complainant's evidence was not voir dire examined and thus expunged, leaving no proof of rape.
* Evidence Act (s.127) – voir dire examination – mandatory where witness is a child of tender years.
* Criminal law – rape – necessity of admissible complainant evidence and proof of penetration; defence admissions cannot substitute for prosecution proof.
* Appeal – conviction quashed where crucial prosecution evidence is expunged for non-compliance with statutory safeguards.
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16 September 2013 |
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Appellate court affirms rape conviction: PF3 improperly tendered but conviction proved without it; appeal dismissed.
Criminal law – Rape – proof of penetration and lack of consent – victim’s evidence as primary proof; Criminal procedure – section 240(3) CPA – formal requirements for tendering PF3 (medical) report; Appellate review – reluctance to interfere with concurrent findings of fact absent misdirection or glaring error.
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16 September 2013 |
| July 2013 |
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Taxing Master reduced excessive instruction fees and taxed the bill of costs to Tshs.10,509,000 after assessing reasonableness.
Taxation of costs — instruction fees — assessment under Rule 9(1)–(2) Third Schedule Court of Appeal Rules 2009 — reasonableness, nature and difficulty of appeal — proof of attendances and disbursements — taxing off unproven items.
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5 July 2013 |
| May 2013 |
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Elections - Election Petitions - Payment of Security for Costs |
9 May 2013 |
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Convictions quashed where contradictory recovery evidence and untested hearsay left prosecution case unproved.
* Criminal law – armed robbery – conviction based on recovery of stolen property – contradictions in witness accounts about recovery and failure to call material witness (14‑year‑old) undermine reliability.
* Criminal procedure – burden of proof – prosecution must prove possession and involvement beyond reasonable doubt; doubts resolved for accused.
* Evidence – recent possession doctrine – inapplicable where recovery evidence is contradictory or unproved.
* Evidence – admissions to community policing (sungusungu) and hearsay from uncalled witness insufficient to sustain conviction.
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9 May 2013 |
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Appellants' convictions quashed due to material contradictions in recovery evidence and misapplication of recent-possession doctrine.
* Criminal law – armed robbery – recovery of stolen property – contradictions in prosecution witnesses about how and from whose premises items were recovered – failure to call material witness – effect on doctrine of recent possession. * Criminal procedure – burden of proof – where contradictions in prosecution evidence exist, doubt must be resolved in favour of accused. * Appeal – second appeal – scope: interference for unreasonableness, misapprehension or breach of principle of law.
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9 May 2013 |
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Court of Appeal lacks jurisdiction to revise its own appellate judgment; misframed revision application struck out.
* Appellate jurisdiction – limits of Court of Appeal’s power of revision under section 4(2) Appellate Jurisdiction Act; * Court of Appeal Rules – Rule 65 procedural only, does not confer jurisdiction to revise the Court’s own appellate judgments; * Proper remedy to challenge Court of Appeal judgment – review under Rule 66(1); * Incompetent/misconceived applications struck out.
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9 May 2013 |
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An application to revise the Court of Appeal’s own judgment is misconceived; revision powers derive from the Appellate Jurisdiction Act.
* Appellate Jurisdiction – revision – scope of sections 4(2) and 4(3) of the Appellate Jurisdiction Act – Court of Appeal may correct irregularities in appeals and call for High Court records; * Court Rules – Rules 48 and 65 procedural only – do not confer power to revise the Court’s own decision; * Procedural remedy – correction of the Court of Appeal’s judgment by application for review under Rule 66; * Misconceived applications seeking revision of the Court’s own decision should be struck out.
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9 May 2013 |
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Reported
Appeal struck out as incompetent for being time-barred and for failure to obtain required leave and serve copy application.
Appeal competency; discrepancy between judgment and decree dates; Rule 90 limitation and exemption; requirement to serve application for copies on respondent; leave required under s.47(1) Land Disputes Courts Act.
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9 May 2013 |
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Appeal struck out as incompetent for being time-barred, not served as required, and for lack of required leave under section 47(1).
Civil procedure — appeal competence — computation of time where judgment and decree dates differ; Rule 90 Court of Appeal Rules — exemption for delay and service requirement under Rule 90(2); Land Disputes Courts Act s.47(1) — requirement of leave for appeal; time-bar and incompetence of appeal.
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9 May 2013 |
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Court of Appeal lacks jurisdiction to revise its own final appellate judgment; application struck out.
Appellate jurisdiction — power of revision under section 4(2) Appellate Jurisdiction Act — limited to purposes incidental to hearing/determination of appeals; Court of Appeal lacks power to revise its own final appellate judgments; Court of Appeal Rules 2009 — Rule 65 procedural on revision applications; Rule 66(1) is proper review remedy.
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8 May 2013 |
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Failure to satisfy Rule 11(2) (including providing security) warranted dismissal of stay of execution application.
Stay of execution — Court of Appeal Rules 2009, Rule 11(2) — requirements: notice of appeal, good cause, and security — applicant’s failure to furnish security — concurrent findings that only chattel (milling machine) was sold — land cannot be offered as security when not adjudged sold.
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8 May 2013 |
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An application seeking revision of the Court of Appeal's own judgment under revision rules was misconceived and struck out.
* Appellate Jurisdiction Act (s.4(2), s.4(3)) – revisional jurisdiction – powers to revise proceedings of lower courts during appeals or on suo motu examination of High Court records.
* Court of Appeal Rules (R.48, R.65) – procedural rules for filing revision applications against inferior courts; do not confer power to revise the Court's own judgments.
* Procedure – correction of Court of Appeal decisions – appropriate remedy is a review application (e.g. Rule 66), not an application for revision of the Court's own judgment.
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8 May 2013 |
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Conviction on an unequivocal guilty plea upheld; sentence reduced to statutory minimum and lawful corporal punishment limits enforced.
Criminal law – Plea of guilty – requirement that plea be unequivocal; Criminal procedure – appealability of convictions on guilty pleas (s.360(1) CPA); Fair trial – language barrier and ability to follow proceedings; Sentencing – conformity with Minimum Sentence Act and Corporal Punishment Act limits; Sentencing jurisdiction – illegality of excessive corporal punishment or sentence beyond statutory minimum.
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8 May 2013 |
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Application for revision struck out as time‑barred and incompetent for wrong citation and lack of jurisdiction.
* Criminal procedure – post‑appeal remedy – application for revision – Rule 65(4) Court of Appeal Rules (60‑day time limit) – failure to comply renders application incompetent. * Procedural law – citation of enabling provision – non‑citation or wrong citation of section 4(2) Appellate Jurisdiction Act is incurable and fatal. * Jurisdiction – Rule 65 procedural only; Court cannot revise its own concluded appellate judgments; review under Rule 66(1) is the appropriate avenue.
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8 May 2013 |
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The appellant's appeal was struck out as incompetent for being time-barred and for failing to obtain statutory leave.
Appeal competency; limitation periods under Rule 90; exemption for obtaining certified copies and service requirement under Rule 90(2); effect of discrepancy between judgment date and decree date; mandatory leave under section 47(1) Land Disputes Courts Act.
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8 May 2013 |
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Conviction upheld on an unequivocal guilty plea; life sentence set aside because appellant was recorded as a fifteen‑year‑old first offender, ordered released.
Criminal law – Plea of guilty – Equivocal versus unequivocal pleas; Rape of a child – facts on record and medical evidence; Sentencing – Juvenile/first offender sentencing under section 131(2) Penal Code; Incorrect life sentence set aside and release ordered.
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8 May 2013 |
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High Court wrongly struck out appeal despite timely notice; Court of Appeal set aside and remitted for hearing.
* Criminal procedure – Notice of intention to appeal – Time limit under section 361(1) Criminal Procedure Act – Notice filed within ten days suffices. * Procedural fairness – High Court erred by striking out appeal without perusing record and being influenced by statements from the bar. * Remedy – Quashing of order striking out and remittance for substantive hearing.
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7 May 2013 |
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The appellant’s cautioned statement was expunged, yet murder conviction upheld for common intention and malice aforethought.
Criminal law – Admissibility of cautioned statements – Mandatory compliance with s.57 Criminal Procedure Act; Criminal liability – common intention (s.23 Penal Code) and causation; Murder – malice aforethought (s.200(b)) established by knowledge that act would probably cause death; Conviction upheld despite expunged confession.
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7 May 2013 |
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Cautioned statement expunged, but appellant's murder conviction affirmed on independent evidence and common intention.
Criminal procedure – Cautioned statements – Non‑compliance with section 57 CPA renders statement inadmissible and to be expunged; Criminal law – Common intention (s.23 Penal Code) – liability where persons conspire to effect unlawful purpose; Criminal law – Murder – Malice aforethought (s.200(b) Penal Code) established where accused knew operation would probably cause death or grievous harm; Causation (s.203) – unlawful act/operation performed clandestinely leading to death.
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7 May 2013 |