Maina, J.: The appellant was the complainant before the primary court at Haneti in I which the respondent was charged with assault causing actual bodily harm contrary to section 214 of the
Penal Code. The Primary Court acquitted the respondent. The appellant was A dissatisfied and he appealed to the District Court at Dodoma. The District Court quashed the proceedings before the Primary Court and ordered a retrial. This appeal is against the decision of the District Court.
The learned senior district magistrate declared the proceedings before the Primary B Court a nullity on the ground that the respondent, who was the accused person, did not get a fair trial. The proceedings were conducted in Kiswahili language which the respondent did not understand. I may hasten to add that the trial Primary Court magistrate found the respondent guilty of the offence charged, but the two assessors C who sat with him found him not guilty. I have also to point out, like the learned senior district magistrate did, that interpreter who was present when the charge was read over to the respondent, does not appear to have been sworn or affirmed as required by section 26(2) of the Primary Courts Criminal Procedure Code. It is not clear whether D the interpreter appeared only when the plea was taken on 11 May 1988.
The evidence was recorded on 11 May 1988 when witnesses gave evidence for the prosecution, and there is no indication whatsoever whether the interpreter was affirmed or sworn. Similarly, when the trial proceeded on 13 and 14 May, 1988, there is no E indication anywhere in the record whether there was an interpreter present. If the interpreter was present on 11 May 1988 when the charge was read over to the respondent, as the record shown, that interpreter was not sworn or affirmed. That was an irregularity. When the trial proceeded on 13 and 14 May 1988, there is no F indication that there was an interpreter. Again, that was an irregularity. These irregularities are incurable. The respondent was not given a fair trial. The learned Senior District Magistrate properly quashed those proceedings before the trial primary court an ordered a retrial. I must add that the retrial should be before another magistrate of G competent jurisdiction.
Having found that the proceedings were a nullity, it is not necessary to consider whether or not there was sufficient evidence to convict the respondent. That will have to be considered by the primary court when the retrial is held. I do not wish to comment on H the evidence because anything which I may say on the evidence will prejudice the primary court which will hold the retrial.
I Appeal dismissed.
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