Athuman Mkwela and 2 Others versus The Republic

Athuman Mkwela and 2 Others versus The Republic; Criminal Appeal No. 173 of 2010: Court of Appeal of Tanzania at Dar es Salaam (Unreported).

  • Criminal Procedure
  • Plea – Trial conducted without a plea – Effect
  • Retrial – when it can be ordered?

Held:-

(i) Section 228 of CPA, Cap 20 lays down a mandatory requirement for a plea to be taken before proceeding with the hearing of the case failure to comply with that fundamental requirement of the law makes the proceedings illegal and / or defective thus resulting in the trial being declared a nullity.

(ii) 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 purpose of enabling the projection to fill up gaps in its evidence at the first trial; even where conviction is vitiated by a mistake of the trial court for which  the prosecution is not to blame, 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.

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