Florence Elias vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SUMBAWANGA DISTRICT REGISTRY

AT SUMBAWANGA CRIMINAL CASE NO. 76 OF 2022 FLORENCE S/O ELIAS

VERSUS

REPUBLIC

RULING 28/02/2025 & 04/03/2025 MWENEMPAZI, J. The offender in this application was charged and subsequently convicted with the offence of Attempt to Murder contrary to section 211(a) of the Penal Code, [Cap 16 R.E 2019]. It was alleged by the prosecution that on the 26th day of September, 2020 at Bangwe area within Sumbawanga Municipality in Rukwa Region did unlawfully attempt to cause the death of one ROBERT S/O SIMEO. He pleaded guilty to the charge and also admitted to the facts constituting the offence hence conviction. He was sentence to serve a term of three (3) years in jail. That was on the 7th October, 2024. On the 17th December 2024, the convict was ordered to serve his sentence by 1 a community service, whereby he was order to be released and perform his service for four hours on working days at Sumbawanga Primary Court, for the whole period of his sentence he was placed under supervision of Jacob Mwakajengele. It seems the offender he could not abide by the conditions set out in the community service order issued under section 3(a) and (b) of the Community Service Act, 2002. The probation officer one Jefta Fula has knocked the doors of this court applying for review of the order issued on the 6th December, 2024. He has stated in Community Service Form No. 5 the reason for are that the offender has failed to comply with previous conditions as follows: 1. Failure to abstain from illicit/intoxicating substance.

2. Unsatisfactory performance of work allocated by the placement agency as per Regulation 40(3) (g).

3. Failure to present himself for work as instructed by the community service officer.

4. Lack of punctuality. At the hearing which was conducted on the applicant was represented by Mr. Ladislaus Akaro, learned State Attorney. The offender was 2 unrepresented. In addition to the facts presented in the application form, the Learned State Attorney submitted that the offender was under the guarantee of a surity of his mother, one Deodata Kalipesa. She had intimated to them that it has been difficult to handle the offender who could not abide by the condition set for him in the community service order. However, upon further inquiry it was revealed by her that she is ready to take the convict to the working station everyday. Mr. Jacob Mwakajengele, supervisor was also present. He informed this court that measures were taken to warn the offender who would report at work late and several times he came while drunk. When the behavior was persisting he informed the community service officer/probation officer and the latter informed this court that their record shows the offender did not attend at work station on 20/12/2024 to 24/12/2024 and then 28/12/2024 to 06/01/2025. As the behavior of the offender to persist in breach of conditions contained in the community service order they have decided to apply for review of the said conditions. The application has been made after the arrest of the offender by the surity and until now the offender is still under custody in the

remand prison. 3 On his part the offender, Florence Elias, has not been able to explain out what made him breach the conditions he has prayed to be pardoned. He has promised to stop using alcohol so that he may work properly. I have heard the complainant and also both sides, the probation officer, supervising officer and the convict referred to as offender. The question is whether the criteria have been made for the complaint to be made. Under Regulation 40(1) of the Community Service Regulations, GN. No. 87 of 2004 before complaint is made two criteria must be made.

1. The circumstances which warrant the amendment or revocation have arisen since the order was made; and 2. That it would be in the interest of justice for the court consider amendment or revocation. In the circumstances of the present case both criteria have been met and this court is properly moved. I have been informed that the offender has not been complying to the conditions by not attending at work, absconding all together twice until when he was arrested by his sureties, and that he has consistently been reporting at work while drunk, which condition has been a cause of not fulfilling his duties properly hence this complaints. 4 The offender had no sufficient explanation, which would warrant parading him. Since it has been difficult to manage and or supervise the convict, I find he has failed to bring himself into terms with the law and thus created more burden the probation officer to handle him than learning to abide by the condition. For that matter, I have failed to see the reasons, which compels the offender to take alcohol everyday such that it is now affecting his work. However, upon reflection, I find the respondent has committed disciplinary offences under Regulation 36(1) of Community Service Regulations, GN 87/2004 as cited in the complaint. The record shows there is only one warning issued to the offender. Regulation 37(1) of GN 87/2004 three (3) warning must

be issued. Where the offender fails to obey Regulation 37(2) must come into play and the responsible officer is the Community Service Officer or supervising officer. 5 Under the circumstances the community service officer is hereby directed to serve 2nd and 3rd warning as per Regulation 37(1) and if lack of discipline is continued by the offender, the next step should be taken as per the law. For the time being and during compliance to the law, the offender should be released to continue serving the community service order with the same existing conditions. It is ordered accordingly. Dated and signed at Sumbawanga this 04th day of March, 2025. T.M. MWENEMPAZI

JUDGE 6