ally ally kitunda vs republic 2021 tzhc 7693 15 december 2021

IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY)

AT MTWARA CRIMINAL APPEAL NO. 55 OF 2021 (Originating from Criminal Case No. 87 of 2021 of the District Court of Kilwa at Masoko) ALLY ALLY KITUNDA........................... .......APPELLANT

VERSUS C THE REPUBLIC............ ...... ..................... ........... .....RESPONDENT

JUDGMENT 3rd Nov. & 15th Dec., 2021 DYANSOBERA, J.: The appellant Ally Ally Kitunda was arraigned in the District Court Of Kilwa at Masoko for the offence of trafficking of narcotic drugs contrary to Section 15 A (1) and (2) of the Drugs Control and Enforcement Act [Cap. 95 R.E. 2019]. The particulars of the offence alleged that the appellant, on 10.10.2020 at Nainokwe village within Kilwa District in Lindi Region, was found in unlawful possession of 03 grams of Narcotic drugs commonly known as bhangi. He was convicted on his own plea of guilty and sentence to thirty (30) years term of imprisonment. He was X not satisfied with the trial court's decision and has appealed to this court on five ground of appeal. i The background of the case according to the record of the trial court reveals that the appellant, on 15th day of October, 2020 when the charge was read over and explained to the appellant for the first time, he pleaded not guilty this necessitated the prosecution side to call witnesses. On 7th day of December, 2020, two witnesses namely, Abdallah Said Kigombe (PW 1) and Bashiri Rajabu Batengula (PW 2). On 3rd day of March, 2021, the appellant pleaded guilty when the charge was reminded over to him. As to what transpired, the record tells it all. Accused Plea: "It is true" I. M. Sorter RM 03/05/2021 Court: entered plea of guilty x, 7" ■ Sorter RM 03/05/2021 Public Prosecutor: Having pleaded guilty, I pray to narrate the facts of the case to the accused. & I. M. Sorter RM 03/05/2021 2

FACTS OF THE CASE 1. That, the accused is Ally Ally Kitunda, 31 years, Matumbi, Muslim, Peasant, resident of Nainokwe village within Kilwa District in Lindi Region.

2. That, on 10/10/2020, the accused was at Nainokwe village within Kilwa District in Lindi Region.

3. That, on 10/10/2020, the accused was arrested in possession of 3 grams of narcotic drugs known as Bhangi.

4. That, after being arrested, the accused was taken and detained at the cell of the office of Veo of Nainokwe, thereafter, the police officer were informed, they reported at the office of the VEO of Nainokwe, they prepared and filed the certificate of seizure in respect of the Narcotic drags and took the accused to the police station of Kilwa Masoko. ,, ' 5. That, after investigation, the accused was arraigned in court of the offence charged. I. M. Sorter RM 03/05/2021 Court: Having heard the facts constituting the charged, the accused is addressed of the interpretation of the word "trafficking" under section 2 of the Drugs and Enforcement Act and enquired by the court to ascertain whether his plea of guilty is clear. ■ .VI. M. Softer RM 03/05/2021 Accused: "I have heard the facts constituting the offence charged property they are correct, I have understood them, I still admit I committed the offence of being in possession of 03 grams of Bhangi," I. M. Sorter RM 3 03/05/2021 Public Prosecutor: I pray to tender the certificate of seizure of Narcotic grams(Bhangi) as exhibit. I. M. Softer RM 03/05/2021 Accused person: I have no objection. I. M. Softer ’ RM 03/05/2021 Court: The certificate of seizure of Bhangi (3 joint) is admitted and marked exhibit Pl. I. M. Sorter "" RM : / 03/05/2021

COURT FINDINGS Given the plea of guilty, the admission to all facts of the case and hot objecting the certificate of seizure of the Narcotic gram (03 gram of Bhangi) by the accused, the court is satisfied, his plea of guilty is unequivocal which warrants the conviction. I. M. Sorter RM 03/05/2021 4

SENTENCE Considering the accused has no previous criminal record as presented by the Public prosecutor, his prayer for stiff sentence to operate as a lesson to the accused and the community as whole to deter similar offence, also considering the mitigating factor pressed by the accused that he has dependants, he is sick for being infected with deceases on his hands, the accused is sentenced to thirty (30) years imprisonment. I. M. Softer RM V" 03/05/2021 Delivered in court this 03/05/2021 in presence of the accused person and the Public prosecutor, • Court: Right of appeal duly explained. I. M. Softer. RM , 03/05/2021 I have carefully perused the records of the trial court. I have also considered the grounds of appeal and the submission of the learned Senior State Attorney and the appellant. In my analysis, the only issue calling for determination by this court is whether the plea of guilty of the appellant was unequivocal. As per the record of the trial Court, the appellant was convicted on his own plea of trafficking of narcotic drugs contrary to Section 15 A (1) and (2) of the Drugs Control and Enforcement Act [Cap. 95 R,E. 2019], However, the corpus delicti was not tendered in court and the principle 5 of corpus delicti was not abided by. It is trite that corpus delict is a compound fact made of two elements: the existence of a certain act or result forming the basis of a

criminal charge and the existence of a criminal agency as the cause of the act or the result. In the present case, neither the said bhang nor any inventory was exhibited in court. In other words, the prosecution failed to comply with the indispensable requirement of proving the corpus delicti if the subject drugs are missing. For that reason, the plea was not unequivocal and the conviction was wrongly entered. For the reasons stated, the appeal is meritorious and is allowed. The conviction is quashed and sentence set aside. It is ordered that the appellant be set free from custody unless his liberty is being assailed for 15th day of December, 2021 in the presence of the appellant in person 6 and Mr. Paul Kimweri, learned Senior State Attorney for respondent/ Republic. Rights of appeal to the Court of Appeal explained. 7