QUESTION.

Carefully study the given scenario and answer the questions that follow.

Mr. Juma Kishoka is an accountant in a private company known as Taq’wa Transporters Ltd
with its head Office at Ipoipo street, Mazimbu area in Morogoro Municipal. Juma Kishoka is a
Tanzanian, Muslim by religion and resident of Mazimbu in Morogoro. On 10th March 2023,
while at work Juma Kishoka was instructed by his Boss Mr. Khalid who is the Company
Manager to go to NSSF and pay Tshs.9 million being the employees’ contribution for their
retirement benefit for the period from January to March 2023. Juma Kishoka duly received the
amount of Tshs. 9 million from his Boss and acknowledged receiving the same in writing and
left the office to go and pay the money to NSSf Offices. After about 2 to 3 hours, Juma Kishoka
returned to office and told his Boss that he had already paid the money but he had not been
issued with a receipt because the system was too slow for that day. He said that he had been
promised to go and take the receipt the following days. On 17 th April 2023, Mr. Khalid the
Company Manager was surprised to receive a demand letter from NSSF claiming for immediate
payment of the contribution at Tshs. 9 million. Mr. Khalid was greatly surprised because he had
believed that the same had already been paid by Juma Kishoka in a previous week. He
summoned Juma Kishoka and questioned him about the fate of the Tshs.9 million he had been
given to go and pay. Juma Kishoka confessed that he actually had not paid that money to NSSF
but had spent the money for his own needs. Mr. Khalid reported the matter to Police and after a
week of investigation Juma Kishoka was charged in Court and the charge read as follows,
 In the District Court of Mvomero At Morogoro

Criminal Case No 223 of 2023

Republic

Versus

Juma Kishoka

CHARGE

Statement of the Offence

Theft contrary to section 258 of the Penal Code Cap.16 of the Laws of Tanzania.

Particulars of the Offence

That Juma Kishoka is charged that on 10 th March 2023 at unknown place and time within Ilala
District and Dar es salaam Region did steal Tshs. 9 million from Taq’wa Transporters Ltd
something which is contrary to the laws.

Dated at Dar es Salaam this 2th May 2023

Signed

Public Prosecutor.

Question I.

In view of the given scenario point out all the defects in the charge given and with reference to
the relevant laws explain briefly why the same are defects.

Question 2.

Assuming that you have been admitted to the office of Public Prosecutor during you’re filled
practical attachment. You have been instructed by your supervisor to draft an immaculate and
professional charge which is free from the above defects, kindly prepare the same accordingly.
DEFECTS OF CHARGE SHEET

Misquotation Of Section Numbers

This is defect of charge sheet whereby prosecutor quote or cite incorrect section number in the
statement of the offence. The duty of prosecutor is to make sure that the section number s are
correctly cited in the statement of offense before signing the charge sheet. When a prosecutor
failure to fulfill his duty it shall be shown that there is injustice to the accused person.

Also in the case of NDEGWA MASIKU & ANOTHER V. R LRT N.21, in this case the
appellants were charged on two Counts;

i) Unlawful possession of Moshi contrary section 30 Act No.6 of 1966

ii) Corrupt transaction with agent contrary to section 3 (1) Act No.16 of 1971.

Section 3(1) deals with soliciting, accepting or obtaining a bribe. Section 3(2) deals with the
giving, offering or promising a bribe. On appeal it was held that; “where a charge is brought
under a wrong subsection and the court is Satisfied that the appellants understood the charge
and were able to defend themselves the defect is Curable.”

The offence committed by accused person According to the scenario and the section number
cited in the charge sheet are differ. Section 258 of the Penal Code Cap 16 is incorrect and
according to that charge sheet is defect, therefore the correct section number shall be cited as
Contrary to section 270 of the Penal Code Cap.16 [ R.E 2022]

Insufficient Particulars

This refers to the omission of relevant material or an information which are necessarily to be
shown, and omission of them can render the charge sheet to be defective. This happens when the
public Prosecutor fails to include the most essential element of the offence. Failure to state
necessary facts in the charge is a source of injustice and competent court it can reject as stated
under section 388(1).
In the case of Mkindia V R [1966] E.A 425, the prosecution omitted the words “with intent to
Defraud” where the accused was charged with the offence of obtaining money by false pretenses.

On appeal the court said:

“Our view is that a charge of false pretenses which does not include an averment that The
pretenses was made with intent to defraud is a charge which disclose no offence at Law, and is
not merely an irregular or defective charge which can be put right by the Application of section
382 CPC (S.388 CPA).”

In the charge a drafter omitted the word “[R.E 2022]” in the particular of an offence, and the pit
the word Tanzania Laws. Also in particular of offense a drafter omitted a place where the act
committed while scenario stated that the act committed within “Ipoipo Street”.
 IN THE DISTRICT COURT OF MAZIMBU

AT MOROGORO

CRIMINAL CASE NO. 223 OF 2023

REPUBLIC

VERSUS

JUMA KISHOKA

CHARGE

STATEMENT OF OFFENCE

OBTAINING GOODS BY FALSE PRETENCE; Contrary to Section 370 of the Penal Code
[ Cap 16 R.E 2022].

PARTICULARS OF OFFENCE

MR. JUMA KISHOKA on date 10 th March 2023 at Ipoipo Street, Mazimbu area in Morogoro
Municipal, he took nine millions Tanzania Shillings (9,000,000/= Tsh.) from his Company
Manager know as Khalid of Taqwa Transporter Limited for the purpose of pay to NSSF office,
but intentionally he did steal such money, an act which is contrary to the law.

Dated at Morogoro this 2nd day of May, 2023

_____________________

PUBLIC PROSECUTOR