image0017

V IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [MOROGORO SUB-REGISTRY] AT MOROGORO CRIMINAL REVISION NO. 8992 OF 2024 (Originating from Criminal Case No. 33 of2023 at the Resident Magistrate's Court of Morogoro at Morogoro, dated 29^^ February 2024) KHAMISI ATHUMANI APPLICANT VERSUS REPUBLIC RESPONDENT RULING 29imi'2Q2^ KINYAKA, J.: In Criminal Case No. 33 of 2023, the Applicant, Khamisi Athumani was jointly charged at the Resident Magistrate's Court of Morogoro at Morogoro,^ hereinafter "the trial court" together with Paul Jembee @ Sinenepi @Sinenepi Kiembe and Rayvan Kidaanda @ Kisasi, for an offence of Armed Robbery contrary to section 287A of the Penal Code, Cap. 16 R.E. 2019, hereinafter "the Penal Code". It was alleged before the trial Court that on 1^ February 2022 at Kaole village within Mvomero District, in Morogoro Region, the accused persons did steal TZS 600,000 the property of Evod Otto tg^Jombi and immediately before such stealing, they assaulted the said Evod Otto @Jombl with machete and sticks in order to obtain the said stolen properties. The charge sheet indicate that at the time of arrest, Paul Jembee @ Sinenepi @Sinenepi Kiembe, Rayvan Kidaanda @ Kisasi, and Khamisi AthumanI were 19, 18 and 15 years old respectively. Upon hearing of the prosecution and defence case, the trial court found all the accused persons guilty as charged. Consequently, upon taking into account the prosecution's aggravating factors and upon considering that the accused persons were very young, the trial court sentenced all the accused persons to prescribed minimum sentence of 30 years imprisonment in jail pursuant to section 287A of the Penal Code. In imposing the sentence, the trial court considered the manner in which the accused persons assaulted the victim that would have caused death to him if he was not immediately rushed to the hospital, the accused persons' active involvement in the commission of the serious crime despite being very young, which according to the trial court, demanded serious penal measures to discourage commission of similar offence. It is worth noting that, the revision is a result of the Court's exercise of supervisory powers upon being notified of the proceedings in Criminal Case No. 33 of 2023 that resulted into the conviction and sentencing of the applicant to 30 years imprisonment in jail, who at the time of the commission of offence, was 15 years old. On 16/04/2024, when the application was called for hearing the applicant appeared in person while the respondent was represented by Mr. Josberth Kitale, learned State Attorney. Having understood the context of the revision, the applicant informed the Court that he was 16 years on the date of the hearing but left it to the Court to decide. Mr. Kitale, learned State Attorney informed the court that the 3^^ accused person, Khamisi Athumani was sentenced to 30 years' imprisonment in jail upon being convicted of armed robbery contrary to section 287A of the Penal Code in Criminal Case No. 33 of 2023. He submitted that upon reading the charge sheet and memorandum of agreed facts, the respondent was satisfied that at the time the 3""^ accused person committed the offence, he was 15 years old. He stated that the accused person is a child as provided under section 4(1) of the Law of the Child Act Cap. 13 R.E. 2029, hereinafter "the LCA" as he is under the age of 18 years. He submitted that section 119 and 120 of the LCA prohibit imposition of custodial sentence against the child even if the child is convicted of an offence punishable to imprisonment. He argued that the compliance of the provisions is mandatory due to the word 'shall' used therein and as interpreted by section 53(2) of the Interpretation of Laws Act Cap. 1 R.E. 2019, hereinafter "the ILA". He continued that section 120(1) of the LCA provides that when the child commits an offence which would have been done by an adult and whose sentence would have been custodial, the Court may order that child to be committed to a custody at an approved school. He added that the law provides for alternatives to custodial sentence under section 119(2) (a) (b) and (c) of the LCA. He argued that the trial court would have resorted to the alternative sentences as provided for under the applicable provisions. He referred to decision in the case of Levelian Wilfred V. R., Criminal Appeal No. 88 of 2023 where the Court held on page 16 of the decision that a child shall not be sentenced to imprisonment but the court, may in addition or alternative to any other order which may be made under the LCA, impose alternative sentence under paragraphs (a),(b) and (c) of section 119(2) of the LCA, or order the child to be committed to custody at an approved school as provided for under section 120 of the LCA. He concluded that the custodial sentence of 30 years imprisonment in jail against the 3^^ accused person was incorrect and contrary to section 119(1) and 120(1) of the LCA. On his part, the applicant had nothing substantive to rejoin, but pressed that he is leaving the matter to the Court to decide. On hearing both parties and upon my reading of the record of the trial court, I now turn to address on the propriety of the sentence imposed on the applicant, Khamis Athumani. The powers of revision of this Court under section 372(1)of the Criminal Procedure Act, Cap. 20 R.E. 2022, permits this Court to examine the record of criminal proceedings of subordinate courts in order to satisfy itself, among others, as to the correctness, legality or propriety of any sentence passed. I have read the record of the trial court which reveal through the charge sheet and the particulars of the applicant in his defence on page 62 of the proceedings of the trial court, that the applicant was 15 years old. Mr. Kitale, learned Counsel for the respondent admitted in his submissions before this Court that the applicant was below 18 years at the time of commission of the offence. It is clear to me that being below the age of 18 years at the time he committed the offence, arrest and even at the time of his conviction, the applicant was a child by virtue of section 4(1) of the LCA. 4zr That being the position of the law, section 119(1) of the LCA prohibits sentencing a child to imprisonment. Instead, subsection 119(2)(a),(b) and (c) of section 119 of the LCA provide for additional or alternative sentence to the ones provided under the LCA, if the child is convicted of any offence punishable with imprisonment. These include, an order for discharge of the child without making any order; an order for repatriation of the child at the expense of the Government to his home or district of origin if it is within Tanzania; or an order for handing over the child to the care of a fit person or institution named in the order, if the person or institution is willing to undertake such care. Flowing from the above observation, it is therefore my finding that the imposition of custodial sentence of 30 years imprisonment in jail upon Khamis Athumani, who was 15 years at the time he committed the offence, was inappropriate and contrary to section 119(1) of the LCA. The wording of section 119(1) of the LCA that 'Notwithstanding any provisions of any written law, a child shall not be sentenced to imprisonmento\texx\^es any other written law, including section 287A of the Penal Code when it comes to sentencing a child. Amplifying the provision above, the Court of Appeal in Is the case of Abel Orua @ Matiku & Others v. Republic, Criminal Appeal No. 441 of 2020 (unreported) on page 37 through to 38 stated thus; 'It is plainly dear from the above reproduced provisions ofthe law thaf both the Law of the Child Act and the Penai Code operate for the best interest of the child. White section 119(1) ofthe Law ofthe Child Actprohibits imposition ofimprisonment or custodial sentence to children and whilst it also, under subsection (2), lists down orders that can be made as punishment to a child convicted of the offence punishable with r. imprisonment, section 26 (2) of the Penal Code, on its part, prohibits the sentence of death to be pronounced or recorded against children... Based on the above analysis, the present revision succeeds. In the premises, I invoke the revisional powers of this Court under section 372(1) read together with section 373(l)(b) and (5) of the Criminal Procedure Act, Cap. 20 R.E. 2022 to quash the sentence imposed by the trial court to the applicant, Khamisi Athumani. As to what is now the appropriate sentence to be meted to the applicant, I have taken into account the gravity of the offence and the cruel manner in \ which the armed robbery was committed by the offenders, and which the applicant was actively involved. In the circumstance, and in compliance with the requirement under section 119(1) of the LCA, I found two sentences would be appropriate in the circumstances. The first is an order for the child to be handed over to the care of a fit person or institution named in the order, if the person or institution is willing to undertake such care as provided for under section 119(2)(c) of the LCA. The second is to commit the child to an approved school as provided for under section 120(1) of the LCA. However, I could not pass any of the above sentences without involving the responsible institution, the Social Welfare Office. The Court was to be assured of the availability of a fit person or institution willing to undertake care of the child, or under section 120(2) of the LCA, to confirm on the availability of a vacancy at any approved school as required by section 120(2) of the LCA. On 3^^ May 2024, the Social Welfare Office submitted the Social Inquiry Report containing a recommendation that considering both the best interest of the applicant, his welfare and safety, the applicant should be shifted from his home village in order to be taken care by a fit person, Ms. Zaidati Sammata of Mtibwa Ward within Mji Mpya Village, in Morogoro Region for one year. The Report added that doing so will enhance the provision of psychological counselling and monitoring behaviour of the applicant for behavioral modification under the supervision of the Social Welfare Officer of Mvomero District, Ms. Angela Banzi. Having considered the social inquiry report, I do not find any reason to disagree with the recommendation of the Social Welfare Officer, Ms. Anna Anthony Makaranzi/ who inquired on the situation and welfare of the child. I agree with her recommendation, except with the recommended period of the child's stay with the fit person. I find to be in the interest and welfare of the child to stay with a fit person until he attains the age of majority. In the event, I hereby substitute the sentence of 30 years imprisonment in jail imposed on Khamisi Athumani by the trial court to an order for Khamis Athumani to be taken care by a fit person, Ms. Zaidati Sammata of Mtibwa Ward within Mji Mpya Village, in Morogoro Region from the date of this ruling until he reaches the age of eighteen (18) years as per section 119(2)(c) of the LCA. While being taken care of Ms. Zaidati Sammata, the child shall be under the supervision of the Social Welfare Office of Morogoro by Ms. Angela Banzi, the Social Welfare Officer of Mvomero District in Morogoro Region. I further order the Social Welfare Office of Morogoro Region to fully implement the order of this Court. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 06^^ day of May 2024. O/C c0^31 -5^ (J> H. A. KINYAKA y UJ Z X JUDGE > 06/05/2024 10