19941005 TZHC Dar es Salaam

1..\ IN IHE HIGH COUR'.i: OF iAH?iANIZ Al DAR ES_ SALAAM HIGH GOUR£ CHH1U~AL APPEAL NO .117 OF 1994 Original Criminal Case No.249 of 1993 of the District Court of Ilala District at Kivukoni Before s.v. Karua, Esg., s. Res. Magistrate ALLY £W/iliIRI ................ APPELLANT versus THE REPUBLIC ................. RE:SP.JhDENT JUDGMEH'.r MWAIKASU, J. By this appeal, the appellant, one Ally rwahiri challenges "the decision of the lower court· whereby he was convici:;ed aJ,ongs:ide wi"th another person of the offence of robtery with violence 1/s 285 and 286 of ~he Penal Code and sentenced i;o 15 years of imprisonmen"t. ine judgment of the h.wer cour·t is impugned on 1ihe grounds that there was insufficient identification evidenc€ against him and. that he had wroµgly been sent~nc~d to che 15 years of imprisomnem; while ai; the time ·Ghe offence is alleged to have been committed he was aged 15 years and therefore a juvenile 1;0 which ."th~ M.S.A. 1972. did noi; comply. The Republic represen i;ed bv ~11rs Maruke, learned S1ia1ie A1;-~orney dee lined ·to support ·Gh ':: co2T',-i ·; 1.;ion on the ground ~ha 1i 1;here was insufficieni; prosecu~i:3 evit0nae to establish proper identi£ic~tion ~f the appellant, in ttAt the two principal and onlv prosecution wii;nesses were rela~iv __ -aerefore i;o her, that demanded corroboration. She aJ3 Gf~ebd with ihe appellan1i's conten1i1on tha G as he

was at the L:in~ of Ghe commission of lihe offence onlv -15 years and therefore a juvenile, the M.S.A. 1972 could noi apply ·co him. A perusal of Ghe record of the lower cour; clearly ~hows tha·G 1ihe appellan-r, and 1ihe two prosecu~ion wi 1iJ1esse·s are residen-ts of ·i;he same area, being Mburahati Motomo·to wi"thin Kinondonj. District Dar es Salaam Region. It is also evtden°' ·,n.ai ~he incident complained of took pl.ace in 1;he open, in broad day l~ght. l'hus according to ·che PWl, one Omari Rash:i.d1 and :-.;he PW2, one Hussein Mohamed, it was in the morning of 13lh day of Ap~il 1993, t·,r 1• 1 een H Pm and 9 am ·,,hat as 1::he two were riding ·a. bicvcle ,, - 2 - on their wav to the market to buy some wheat flour and rice for their shop, a group of ,,oung people of whom was the appellan-G, was found ~nd then one of them hit the PW2 on his ribs. That made him lose control of the bicvcle which he was the one pedling. is thev fell down, such young men including the appellant began assaulting ·r;he PWl who had r.hen go·c hold of money in- the sum of Tsh.700,000/=, wrapped in a nylon bag. In Ghe course of such struggle one o± such you;th, called Shai-'bu, snatched such bag and ran awav with it. Thereafter the PWl and PW2 reported ·Ghe matter to the police at Magomeni police station where thev were given a PF~3 in respect of injuries sustained by the PW2 on the ribs and head~-

Later the PWl and PW2 led the police to search for the culprits and ·1ea to the arrest of the appellant and hie colleagues. ' The two witnes~es maintained that thev had no mistake about the identification of the appellant because he was their neighbour and ,:;he incident "took place in broad d.av ligln. such evidence was also ~ccepted b;v Ghe lower court and Gherefore led to the conviction of the appellant. With respect to the learned Stale Attorney•~ submission to the contrary, i find no reason to suspect ihe credibilitv of the two prosecution witnesses. fhe i;wo have n,ot been shown to have had any grudge with Gile appellan1i pre:-'iouslv. And being such neigh·bours, and 0ha G the incident took place in broad day light I find no reason to suspect che accuracy of thei~ idesntification of ~he appellan1i. I cannot, therefore, but uphold the appellant's conviction. On the other hand! entirelv agree with the appellant, as also conceded bv the learned 3tate Attorney, that as ai ihe time of the commission of ~he offence che appellan1i is said vO have been .qged fifteen years, :::iu, ·,·__ -_ f,J"·ore was within 1;he definition of a ·' juvenile" as provided · v:r- ·maer ·i;he Children and voung Persons Ordinance Cap.13. As such in terms of s.2 o~ ihe M~SiAi. 1972, the MSA 1972, does not applv such cvpe·of offender, Irr faci under s.3 of Ghe mSA 1972 a "juvenile" is therein defined

1iO mean anv person under the apparent age of 18 years, which age is even highej ,-. ·than ·t;he age prescri.1)ed under "the Children arui Young Persons Ordinance. Thus as such juvenile the appellant ought to ha~e been sentenced in accordance wi i;h the provisions of· Ghe Children and Young ~ersons Ordinance. J·G -is the requiremeni; under s. 22 ( 2) of "Ghe Children and Yo1.1-ng Persons Ordinance that no young person shall te senvenced 1i0 ,, - 3 - imprisonmenli w1less Ghe court considers Ghat none of i:;he o·Gher . methods in which the case may be legally dealt wiGh by the provisions of Ghis or an:v oGher Ordinance is suitable •. Yet in this case there was no such finding by the trial court and in fact the app~llant was found to be a first offender. In the circumstances, the most appropriite measure to be ·Gaken bv the lower co~rt would have been ei~her to order ~he appellant·to •go . , to ah approved school or to contiitionallv discharge him on probation. Accordingly, ,he sentence of 15 years of imrpsonment ~mposed by the lower court up?n the appellant is hereby set aside. Instead the appellanG is hereby discharged on condiGion that he does not commit ano1iher offence within a period of chree vears from todav, and during such period he shall be under Ghe supervision of a Probation officer, attached to Dar es Salaam (Kisutu) R.M's ~ 1 ~ourt. It is als6.noted that lihough che

complainants complained· of having been robbed· ish.700,000/= which has noG been recovered• no order for compensation of such sum bv the convicted persons, by the lower courG as required unde~ s.7(1) of ~h~ M.S,A~ ~972. That however is remedable under subs.(2) of the said seeiiOn which empowers a higher court co make ,such order on ~he a~plication . of the owner or on its own - motion.. IG is, Gh~refore, accordingly ordered that ,he convicted persons shall compensate ·che complainants ·the sum of sh~ '700.900/. . . ,. . jointly and severally. The appeal is 1iherefore parilv allowed.· Delivered this 5th day of October, 1994 at Dar ~s Salaam in Chambers in the p1· .:.·c ···.: · ·-' Mrs. Rwegasira and lihe appellant who is Under cqstody. R. J. Mw·aikasu Judge I certify tha~ this is a true copv of ~he original! DIS~;~OAR