ALLY ALLY HUSSEIN

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 10026 OF 2024 (Arising from Criminal Case No. 9 o f2023in the District Court o f Kondoa at Kondoa) ALII ALLY HUSSEIN................................................... APPELLANT VERSUS THE REPUBLIC.................................................... RESPONDENT RULING 29h May & 28hJune 2024. MUSOKWA, J: This is an appeal against the conviction and sentence issued by the District Court of Iramba (trial court). Before the trial court, the appellant was arraigned upon being charged with the offence of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code Cap. 16 R. E 2022 (Penal Code). The brief facts to the case are summarized hereinafter:- According to the prosecution, it is alleged that on 12th May, 2023 at Soera Village in Kondoa District, the appellant had carnal knowledge of the victim, i a boy aged 16 years, against the order of nature. To protect his identity, I will refer to him as "the victim". The records show that the appellant pleaded not guilty to the charge. However, upon hearing of the evidence, the appellant was convicted and sentenced to life imprisonment. Being aggrieved by both the conviction and sentence, the appellant lodged this appeal containing several grounds which will not be reproduced herein for reasons to be apparent shortly. On the date scheduled for hearing, the appellant appeared in person and fended for himself. The respondent was represented by Ms. Patricia Mkina, learned state attorney. The court suo mottu raised a concern on an apparent error on the face of the records, specifically on the manner in which the judgment was composed. The sentence did not form part of the judgment although it appeared in the proceedings. The parties were therefore called upon to address the court on this issue. In response, Ms. Mkina, learned state attorney submitted that upon close perusal of the judgment, it was observed that while the conviction of the appellant was duly indicated in the judgment, the corresponding sentence 2 did not form part of the judgment. The learned counsel for the respondent referred to page 8 of the judgment. Proceeding further, Ms. Mkina averred that instead of forming part of the judgment, the sentence was recorded at page 31 of the typed trial proceedings only. According to Ms. Mkina, this is contrary to section 312 of the Criminal Procedure Act, Cap. 20 R.E 2022 (CPA) with regards to the drafting of judgments. Ms. Mkina asserted further that the said provision requires the sentence to be included and to form part of the judgment. The learned state attorney prayed that the court should order the case file to be remitted to the trial magistrate who adjudicated the matter, and that the trial magistrate be directed to compose a proper judgment in accordance with the law. This being the question of law, the appellant did not have any submissions thereof. Upon careful scrutiny of the anomaly, I agree with Ms. Mkina that the judgment of the trial court was in violation of section 312 (2) of the CPA which provides as follows: - "In the case o f conviction, the judgment shall specify the offence o f which\ and the section o f the Penai Code or other iaw under which\ the accused person is convicted 3 and the punishment to which he is sentenced". [emphasis added] Looking on page 8 of the typed judgment of the trial court, it is recorded that:- "....In circumstances o f the above, this court finds the accused guilty o f the offences he is being charged with and accordingly I hereby convict the accused for the offence o f unnatural offence contrary to section 154(1) (a) and (2) o f the Pena! Code, Cap. 16 R.E 2022." Clearly, the judgment quoted above does not indicate the punishment, which is a necessary ingredient of a valid judgment. Indication of the sentence on page 31 of the typed proceedings is not sufficient for the purposes of section 312(2) of the CPA which is coached in mandatory terms. Thus, the omission to indicate the sentence in the judgment is a fatal and incurable irregularity. Accordingly, I quash the purported judgment dated 2nd November, 2023 (M.F. Lukindo, SRM). In the circumstances, I proceed to order the case file to be remitted to the trial magistrate or his successor in office to compose a proper judgment expeditiously in compliance with section 312(2) of the CPA. Meanwhile, the appellant shall remain in custody and will be summoned by the trial court on the date of delivery of a proper judgment. In case the appellant wishes to appeal afresh, the time to appeal shall commence from the date when a proper judgment of the trial court will be pronounced to the appellant. Finally, for the interest of justice, the sentence of the accused shall start from 2nd November, 2023 because the irregularity was prompted by the trial court. It is so ordered. Right of appeal explained. DATED at DODOMA this 28th day of June, 2024. Ruling del resence of the appellant and in the presence of the counsel for the respondent, Mr. Anyimike Mwamsiku. 5