20170530 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NQ. 235 OF 2016 (Originating from the District Court of Temeke at Temeke, Criminal Case No. 222/2015) ABDALLAH s/o HIARI -----------~----------------------------- APPELLANT VERSUS THE REPUBLIC ----------:--------------------------------------- RESPONDENT JUDGMENT MUTUNGI. J. Before the District Court of Temeke at Temeke, in Criminal Case No. 222 of 2015, the appellant was charged, \ prosecuted, convicted and ultimately sentenced to a thirty years imprisonment for an unnatural offence contrary to section 154 ( 1) (a) of the Penal Code, Cap. 16 R.E 2002. The evidence of three prosecution witness was enough to convince the trial court that the appellant committed the offence he was charged with. l In brief, the record indicates that sometimes in March, 2015 at night hours the victim, BENA"RD EGBATH (PW2), a boy of 13 years was sitting outside their house. It was alleged that, during that night there was no electricity and that is why PW2 sat outside waiting for the power. While he was out, the appellant passed by and asked him why he was outside the house and in no time, the appellant grabbed the victim moved him to the rear side of the house. and unlawfully penetrated him against the order of nature. PWl, the victim's mother alleged that she heard gossips that his son was sodomized. She decided to take him to the police and obtained a PF3 and later medical examination was conducted by PW3. The appellant on the other hand denied the allegations and stated that he was not at home on the alleged date. He also added that, PWl wanted to \ establish an affair with him but he refused and that is why he decided to fix him. On appeal the appellant filed a petition of appeal with ten grounds which can be reduced into the following grounds:- 2 1. That the. trial court erred in law and in fact by relying on unprocedural evidence of PW2 which was taken without voire dire test. 2. That the trial court erred in law and in fact by relying on evidence of PW2 where the condition of identification was unfavourable. 3. That the trial court erred in law and in fact by relying on hearsay evidence of PWl. 4. That the trial court erred in law and in fact by relying on PF3 without conducting any medical analysis to the appellant such as DNA. \ 5. That the trial court erred in law and in fact by convicting the appellant without the prosecution evidence establishing the age of the victim. 6. That the trial court erred in law and in fact by convicting and sentencing the appellant to thirty years 3 imprisonment while he was below eighteen years during prosecution. At the hearing the appellant asked the court to adopt and consider his grounds of appeal and set him free. Ms. Imelda Mushi, learned State Attorney-appeared for the respondent. She supported the appeal on the ground that there are legal irregularities which go to the root of the case at the detriment of the appellant. She argued that, during the trial, the appellant was at the age of sixteen years,. and in terms of the Child Act his case was supposed to be ·fried in the Juvenile Court and not in the District Court like in this matter. She added that the court after realizing the appellant was of tender age it was required to transfer the appellant to the appropriate court. She elaborated that \ the trial court failed to do so thus violated section 100 of the Law of Child Act No. 21 of 2009. The learned State Attorney submitted further that, under section 119 ( 1) of the Law of the Child Act, the appellant was not supposed to serve a custodian sentence but he 4 was supposed to be taken to an approval school. Under the circumstance she said it is difficult to order re-trial but rather the appellant be set free due to the error on the face of the record. I will start with ground six of appeal, which the learned State Attorney chose to argue. It is true that the record indicates 4t that the appellant was at the age of sixteen years during the occurrence of the alleged offence. The issue for determination is whether the appellant was appropriately prosecuted and convicted. The appellant's age by the time of the trial falls within the category of the child, which is defined as a person below the age of eighteen years. See section 4 of the Law of the Child Act No. 21 of 2009 (Herein after the Act). ' As rightly submitted by the learned State Attorney, the appellant ought to have been prosecuted under this law and not otherwise. He was supposed to be prosecuted in the Juvenile Court established under Part IX (a) of the Act. There is no doubt that the appellant was prosecuted in the 5 normal District Court, which had no jurisdiction to entertain the matter. The trial court entertained a matter which it had no jurisdiction hence violated the appellant's right. This is a grave error which cannot be left untouched because as it goes to the root of the case and jeopardized the rights of the appellant. At this end, I am satisfied that the trial court exercised the powers not within its jurisdiction, I therefore nullify the entire proceedings, quash the conviction and set aside the sentence. Instead, I order immediate release of the appellant from the custody unless otherwise lawfully held. Basing on the circumstance and nature of the case, I need not address other grounds of appeal since this ground is enough to dispose the matter. The appeal is accordingly allowed. ' 6