Arusha. The Court of Appeal of Tanzania has quashed the death sentence by hanging imposed on Mr Kulwa Langi after finding that, during the preliminary committal proceedings, he was neither read nor informed of the witness statements and substance of exhibits the prosecution intended to rely on to prove the murder of Kundi Shija.
The Court said failure to inform Mr Langi of the evidence breached statutory requirements and compromised his rights.
It therefore quashed the proceedings and ordered the case to be retried before another magistrate with extended jurisdiction to hear murder cases.
The appellant had been sentenced to death by the High Court, Tabora Sub-Registry, after being convicted of murdering Kundi in Kaloleni Village, Urambo District, Tabora Region, on September 7, 2020.
In Criminal Appeal No. 495 of 2023, a three-judge bench of the apex court, comprising Justices Gabriel Ndika, Benhajj Masoud and Dr Yose Mlyambina, found that the procedural defect vitiated the entire committal proceedings and subsequent trial judgment.
The Court noted that the trial record did not show that Mr Langi had been read or informed of the witness statements or the substance of the exhibits the prosecution intended to rely on.
According to the Court, Section 263(2) of the Criminal Procedure Act (CPA) places a mandatory duty on the court to ensure an accused person is informed of the charge and the essence of the evidence intended to be used against them.
The Court emphasised that the requirement is fundamental to ensuring an accused person knows the case they face and can adequately prepare their defence fully before trial begins, fairly.
“Under this section, the primary duty imposed on the court is to read, or cause to be read and explained, the charge to the accused in a language they understand. This requirement aims to ensure the accused understands the nature and particulars of the charge facing them, thereby placing them in a position to answer to it,” stated the Judge.
“This section also serves to prevent trial by ambush. Criminal proceedings should not be a contest of surprises. Justice demands transparency, and early disclosure ensures that the prosecution does not gain an unfair advantage by withholding evidence until the trial,” added the Judge.
Justice Mlyambina said this duty promotes equality between the prosecution and the defence, a principle at the heart of a fair criminal justice process.
He noted that, in this appeal, the Court was satisfied that ordering a retrial was not intended to assist the prosecution in filling gaps in its evidence, but to afford the appellant his right to a fair hearing.
“We therefore quash the committal proceedings conducted in the Urambo District Court on February 27, 2023, along with all subsequent proceedings in Criminal Case No. 25 of 2022 of the High Court at Tabora,” stated Justice Mlyambina.
The Justices concluded by quashing the judgment against the appellant and ordering a retrial, with Mr Langi remaining in custody pending the fresh trial.
Background to the Appeal
On the day of the incident, September 7, 2020, Kundi was allegedly killed with a machete.
The second prosecution witness told the trial court that he received news of a break-in at his mother’s house.
He said that upon arriving at the scene and taking cover, he saw a person enter the house and later emerge carrying a sack of rice.
When the intruder spotted him, he dropped the sack and fled.
The witness, assisted by his younger brother, pursued and apprehended the man, whom he later identified as Langi.
Upon returning to the crime scene, they found Kundi severely injured with machete wounds. He later died at a health centre.
After hearing evidence from eight prosecution witnesses and Langi’s defence, the High Court found him guilty and sentenced him to death.
The Appeal
In the appeal, the appellant raised four grounds, including that the case against him had not been proved beyond reasonable doubt.
During the hearing, it was the State that raised the legal defect, pointing out that although page 40 of the court record listed the witnesses and exhibits the prosecution intended to use, it did not show that these particulars had been read and explained to Langi.
On those grounds, the State asked the Court to quash the preliminary proceedings and order a retrial.
The application was not opposed by the appellant’s counsel, who only requested that the fresh trial be expedited, given the period his client had already spent in custody.
