The Pain of Trial De Novo in Tanzania

BY

GUJE MAGAMBO 0769697264/0782968888

“Law for common good”

ABSTRACT

This Article is premised on the concept of Trial de novo and the mischief which the concept
seeks to cure in our justice delivery system. The effects of commencing a trial de novo, with
particular reference to the pain on the litigants is examined and an attempt is made to strike a
balance between the mischief and consequences. This Article sum up by making
recommendations on how the pain of Trial de novo can be alleviated in order to achieve greater
justice in our legal system.

Main highlights

Re-trial/ Trial De Novo, implies a new trial or a fresh trial, it is an order of the superior court in
hierarch in Tanzania which nullify the decision passed by surbodinate court, body or tribunal
due to irregularities, the superior court order a nullified case to be tried again from the
beginning by the same court, body or tribunal.

One of the tenets of a re-trial emanate from the Right to a fair trial enshrined in Article 13(6)
(a) of the Constitution of the United Republic of Tanzania, 1977, Cap.2. The High Court of
Tanzania, in the case of JOANITA JOEL MUTALEMWA vs. CHRISTINA KAMUGISHA
TUSHEMELEIRWA, PC. Criminal Appeal No.3 of 2022, at page. 7 had this to say: The law allows
courts to order retrial where it is found that the impugned proceedings were shrouded in
wanton irregularities that render the legitimacy of the verdict suspect or wanting.

The Court went further holding that, the retrial is intended to right the procedural wrongs
committed in the course of the trial. However, the trite position is that, where retrial is
intended or is likely to hand the prosecution a chance of steadying the ship or stitching its torn
case, the court is dissuaded from ordering a retrial. This is because fresh opportunity to fill in
the gaps is likely cause an injustice to the accused person (See: Fatehali Manji v. R (supra)).

When a trial starts de novo, proceedings are commenced afresh as if the original trial did not
take place; the only court processes that are safe are the originating processes. Its implication
is that it is as if no trial whatsoever had been had in the first instance. It is clear to me that
when a matter commences de novo, it is like going back to the drawing board. Everything starts
afresh, that is, the evidence of witnesses, evaluation of evidence by the Court; in short, the
entire proceedings.

When the trial de novo occurs, it does not only render futile the entire proceedings as well as
the efforts and time expended, litigants must go through the pains of repeating similar
processes if indeed it is their desire to obtain justice in the courtroom.

The Effects of Trial De Novo

It has already been established that when an action commences de novo, it starts afresh. The
pain on the litigants who have expended time, resources and energy on a trial is better
imagined. Therefore, I hasten to conclude that witnesses who had earlier testified in a trial
which commenced de novo must give another or a fresh testimony. In the same vein,
documents which had already been tendered must be re-tendered.

The pain of starting a trial de novo is premised on the sad reality that a litigant must repeat all
the processes and steps he has taken before the elevation, transfer, death or retirement of the
trial judge taking into account the fact that all the progress he has made will never bring forth
results and per chance some results had been attained by way of little victories with respect to
interlocutory applications, these can be eroded when an order to commence trial de novo is
made.

In effect, where a witness is unavailable to testify in a trial commenced de novo in a court of

law or where such witness has died before the trial is recommenced, it means the party relying
on such witness, has only one choice and would have to dispense with the witness’ testimony.
Assuming the witness in question is critical to the party’s case, the justice of re-commencing the
case de novo, becomes tenuous and a mere pain to the party.

Mostly, litigation matter may drag on for a number of years without reasonable progress. In the
midst of these exertions, starting a trial de novo is no less than a disaster. Litigants bear the cost
of litigation until the case is brought to a close. Litigants pay for filing of court processes and
service of same, certification of documents where necessary, appearance fees to counsel, the
cost of transportation of parties and witnesses to court etc. When de novo happens, all
expenses on the trial agonizingly has to be written off as a loss.

Moreover, the legal practitioner also shares in this pain. Although a legal practitioner may
receive professional fees for all his efforts in the initial trial, the primary goal of every good legal
practitioner should be to obtain justice expeditiously for his client. The pain of de novo on legal
practitioners is that the years of labour and toil will yield no result especially in situations where
the trial has progressed significantly and sometimes is almost at an end. Even more painful and
bitterrness is that the legal practitioner has to start his toil all over from almost scratch.

Recommendations

The mischief behind trial de novo may be good, subject to argument. But fairness is what justice
really is about. It will do good and substantial justice that proceedings are dispensed of by a
single Judge and timeously too. For justice delayed is justice denied. As a result, it is important
to put the concept of trial de novo in context vis a vis our justice delivery system. The following
are recommendations put forward for consideration and it is believed that these
recommendations will alleviate the burden of trial de novo on litigants.

I humbly invites you for recommendations

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