It appears to us that although the learned trial magistrate purported to conduct
a voire dire examination at page ten of the record of appeal, she lost track and ended up prosecuting the case. This, she did, without making
a finding on whether the child knew the meaning of an oath, and, or the duty to tell the truth and furthermore, whether the said
child was possessed of sufficient intelligence to justify the reception of her evidence. In that regard the trial magistrate failed
to comply with the mandatory provisions of Section 127 (2) of the Evidence Act, 1967. This, in our considered view, was a fundamental
irregularity which occasioned a failure of justice. The question is whether we could redress the injustice by ordering a retrial.
In Rex versus Kija Sagida and 2 Others Vol. 14 EACA 118, the then Court of Appeal of Eastern Africa ordered a retrial where the learned trial Judge advised the accused
to opt to remain silent after the prosecution closed its case. In the said case, the Court held that ?
The dual role of the Judge and defending counsel, caused him to commit a grave incurable error in procedure. The Judgefs advice
to the accused rendered the trial a nullity. ----------
The Court further observed:
--- As there was little, if any, evidence against the appellantsf statements, the matter becomes one of crucial importance,
and it is impossible for us to say that a failure of justice may not have been occasioned by the Judgefs action. We therefore
feel compelled to declare the trial a nullity which of course, has the direct effect of having the appellants in custody committed
for trial in the High Court on a charge of murder. We direct that any further trial of these three accused persons or any of them
shall take place before another Judge.
In the present case, the trial magistrate played the dual role of magistrate and prosecutor while conducting the purported voire dire examination, a fatal irregularity by any standard.
In another case, Rex versus Dinu d/o Sombi and 2 Others Vol.14 EACA 136 the Court of Appeal of Eastern Africa nullified the trial and ordered a retrial in a murder case because the learned
trial Judge had not complied with the provisions of Sections 279 to 283 of the Criminal Procedure Code, Tanganyika, which omission
might have affected the opinion of the assessors and therefore occasioned a failure of justice.
We also perused the case of Rex versus Vashanjee Liladhar Dossani Vol. 13 EACA 150.
In that case the appellant was convicted and sentenced for offences against Defence (Price of Goods) Regulations, 1943. On appeal
to the High Court of Nyasaland (now Malawi), the learned Chief Justice found that although the evidence on record supported the conviction,
gthere were certain unsatisfactory features prejudicial to the appellant connected with the trial resulting in his not having
had a satisfactory trial and he ordered a retrialh. The appellant appealed against the order for a retrial. The Court of Appeal
for Eastern Africa held:
An order for a retrial is the proper order to make when accused has not had a satisfactory trial.
We also had the advantage of perusing
the case of Merali and Others versus Republic (1971) HCD n. 145. In the said case, the Court of Appeal for East Africa made the following observation on retrial orders:
It is clear that the original trial was neither illegal nor defective. It is well settled that an order for a retrial is not justified
unless the original trial was defective or illegal.
Furthermore, the principles for ordering a retrial also featured in the case of Ahamed Ali Dharamsi Sumar versus R (1964) E.A. 481 in which the appellant challenged a retrial order issued by the High Court. The Court of Appeal of East Africa held:
Whether an order for retrial should be made depends on the particular facts and circumstances of each case but should only be made
when the interests of justice require it and where it is likely not to cause injustice to an accused.
The same reasoning was reflected in the case of Fatehali Manji versus The Republic (1966) E.A. 343 in which the Court of Appeal of East Africa held;
In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction
is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill gaps in its evidence at
the first trial --- each case must depend on its own facts and circumstances and an order for retrial should only be made where the
interests of justice require it.
Under the circumstances, and in view of the above, we are clear in our minds that
in this case the trial was fundamentally defective because the trial magistrate did not comply with the mandatory provisions of Section
127 (2) (3) of the Evidence Act, 1967, and Section 240 (3) of the Criminal Procedure Act, 1985.
We accordingly nullify the trial and order a retrial before another magistrate of
competent jurisdiction.
DATED at DAR-ES-SALAAM this 25th day of August, 2005.
.RTF of original document