19961004 TZHC Dar es Salaam

I f .... I I I ...,.;- ~ f ; I . .., { _f," ., IN •rHJ.; HL:iH UO\JRT OF TI.N½i.NL. . ' ,:.T Dl'.R l!:S S.:J,tJJ1 :u)1:~µ.A~ JURISDICTION ' .. . CRIMIN";..t ,J>Pi:,~L ....~.---~--.• . - ..._.. ........ (ORIGI;,,.i~ CRIMINt.L C~\SJ!i No. 1991f.1f ff~ o.:· ~ --· y;r:, .;ouRT OF ILi*I. ~T.RICT 1~'1' KISUjl_) . l> ~Nr · M.·.G. . ao.J.fRC /.,N'n{ONY GWtNO & l~O'J.'IUIR • •. •• ••••• ••• •.., • t• _:-a_~\NS. • · . . iOUQlNAL ;.CQOS~) Vl:ffiSUS ffi ~ijBLIC ~i' ••••••••••••••••••••••••••••• ·······"11'.J~~~ .... ,, • ·••s •. . .... ,,w JUOGM:ZNT ,.~, '" .. ........ ~.- .. MSUJ1~"¥: ~,u. 31 .· Ap,a_llang .... eh:37gijd ill wi.~ on~ Qoui-9 ot C o ~ J to •~i a, ,~♦oey th~~- ~~'i-~J'P• at ao•Of7 to ( Sec~on ·or th.:i Penal, Cod@• :&11<1 in •h~ alt@Jtnaij.~ ihtY WlfO .,. a1'V'ged 1th-~aking ·inio a building eont,o.»Y io etJf\iona i96C1) and !65 of· the· P~n~ Cod~• .l.t thQ co11eluei,on of tha pl'OGl;}v~nge tht il;larned P,intiPD-1 Re°'d~n- M.:\f5istrate convitted thJm on 'b~th Cou.np and e@np~dd ~f ot thijm to se;en ~qn y~o:,o imprisonment •~e~•"v~• In ,h~ - ~ a~:>;al thi;l:; :Jre tontrow~ti~ 00111 th'i eon'4e.i~ono aiid _s@•t@nc;o. 1 Tha und:t.o»j,od poJty.on o! th.: pros-ieuti,on •DJJ~ show, that a; ~e ma~al t,me both appeli~ts wer~ e~lGyed oy thij ~o•~~ o•g~~on ao ~ • t-1atohmjl1. It ~sin ~~d~ne~ that on the n:i.ght in quast,on• w1i)P appillMts WR on duty, the pr~mis~e of th~

complainants Willi b~oke• lftto nnd sundn offifi ~i~ta including c ; ~ o and ~~ing m13tif@s wit,h tot-a+ val,ue ot ShG. 1'-, 149,248/. ~ stol~. Soth ap~llcll1it . 1..... .2. 2 disapp~ared from their respective residences in Dar es Salaam and were arrested in Morogoro about two months later. In iefence each appellant asserted that he was employed by the complainant as a watchman on a temporary term of one montho Hence after the 6aid term of one month had elapsed - each -·-- decided . ~ ·- -- . -·- . . to stop_,. working. This funy story was rightly rejected by the learned trial magistrate According to their letters of employment, which were produced as Exhibit, P3 and P5, appellants were employed for a period of three months with effeot from 1/12/93. However, appellants disappeared from work on 24/12/93 after the offenc8s were committed. But even if it is accepted that appellants were engage:ct for a term of one month, since the record shows that they started worl: on 1/12/93, they had still about one week to work at the time when they disappeared. As a whole the evidence that appella11ts disappeared immediately after the occurance of the alleged off.ences and were arrested about two months later are incapable of any other reasonable explanation except that they are the culprits of the said offences. In other words these factors irresistably lends to the guilt of the

appellants. As noted earlier that the charge sheet contains two counts but they are in alternative. It is not true as the learned trial magistrate asserted in her judgment that appellants faced two consecutive count~. In essenee each appellant could only be convicted on either of these ~ounts and not on both of them as the trial magistrate did. The proper praetiee is that where there are alternative counts and conviction is entered on one of them, the court should not make any finding on the J:"elQai;ingoount - Wachira Njenga v. R. (1954) 21 EACA 398. Thus in the present case after the trial magistrate had convicted the appellants on the p~imary count of conspiracy, she should not have made a finding on the alternative count of breaking. And if I may add in passing for the benefit of the prosecution, that when it is decided to charge the accused in ,C. ternative, it is advisable that the primary count should be the one w}ich is more serious than the altervative count. Thus in the presert case the primary count should have been the offence of breaking for which the trial court could have imposed a sentence of up to 8 years inprisonment under the Minimum Sentences Act as opposed to / ••••• 3 . -' . the maximum oentence of 5 years which the trial court may imPQae on the ~ount of conspirafy as limited under ee~tion 170(1) (a) of the (;rim;l.nal Procedure A•t• Henee for this reason

the sentenee of seven ~ars imposed on the primary count of conspira<:y in this case is illegal for contravening the aformentioned provision. Similarly the sentence of 10 years imprisonment imposed on the alternative ~ount of brecldng is equally bad. According to s~ction 170( 1) (a),, the powet- of a district <;ourt o,."'l custodial sel,\.tence is limi~d to a ~um of five years or a maximum of eight years for scheduled offences unless a higher term of minimum sentence is authorised by law. Had the conviction on the alternative count been proper the highest sentence the trial court would have been empowered to impose is eight years jail. From these observations the sentence of seven years jail imposed on the primary eount of conspiracy is set aside and instead appellants are sentenced to five years imprisonmento Furthermore conviction and sentence in respect of the alternative count of breaking are quashed and set aside respectively. In eonelusion, except for these alterations this appeal is dismissed•

JUDGE ==-=-..... - 4/10/96 Appellants: present Republic: Kamugisha.