YASIN MOHAMED ELLISHA VS REPUBLIC 222222222222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 14323 OF 2024 (Originating from Criminal Case No. 176 of 2022 before Hanan'g district court at Katesh) YASINI MOHAMED @ ELISHA MOHAMED....... APPELLANT VERUS THE REPUBLIC........................................................ RESPONDENT JUDGMENT 29thJuly & 9th August, 2024 Kahyoza, J.: Yasin Mohamed© Elisha Mohamed (the appellant) was charged with the offence of rape contrary to section 130 (1), (2) (e) and section 131 (1) of the Penal Code Cap 16, R.E 2022. After trial, the District Court of Babati convicted and sentenced the appellant to 30 years' imprisonment. He is now appealing against both conviction and sentence. A brief background of the matter is that, it is alleged that on 23rd April 2022 during 16:00 hours, at Mureru Village within Hanang District in Manyara Region the appellant raped a girl of five years. The appellant pleaded not guilty to the charge, and the prosecution summoned five witnesses and i tendered one exhibit to prove its case. On the appellant's part, he defended himself on oath and summoned two witnesses. He denied to commit the offence of rape. Before he took oath, he told the court that he was 18 years old. The court believed the prosecutions witnesses and found the appellant guilty and convicted him. Aggrieved by both the conviction and sentence, the appellant appealed to this court advancing seven grounds of appeal. Given the nature of one of the grounds of appeal which touches the jurisdiction the trial court, thus competence of the trial, this appeal will discuss only that ground of complaint, which that- 1. the trial magistrate erred in law and fact by convicting the accused without making an inquiry as to the accused person's age who alleged to be 16 years old. During the hearing of the appeal, the appellant who appeared in person prayed his grounds of appeal to be accepted and the appeal allowed. He did not have much to argue in support of the appeal. Ms. Chema, learned state attorney who was assisted by Ms. Ester Malima appeared for the respondent supported the first ground of appeal. She argued that the charge sheet showed that the accused person was 18 2 years old but during the preliminary hearing, the accused (the appellant) told the district court that he was 16 years old. The court directed the accused to tender exhibit to prove his age. The record does not show if the court conducted an inquiry to establish the accused person's age. Referring to sections 113 and 114 of Law of the Child Act, [Cap. 13 R.E. 2019] (the LCA) and rule 12 of the Law of the Child (Juvenile Court Procedure) Rules, 2016 (the Rules), she submitted that failure to make an inquiry as to the accused person's age was fatal irregularity. She contended section 388 of the Criminal Procedure Act, [Cap. 20 R.E. 2022) cannot cure that irregularity. To support her contention, she cited the Court of Appeal decision in Athanas Mbilinyi vs Rv (Criminal Appeal 275 of 2020) [2022] TZCA 663 (1 November 2022). As to the way forward, the learned state attorney prayed this court to order the trial court to conduct an inquiry to determine the accused person's age. It is the trial court's findings which will determine the way forward. He prayed this court not to order a retrial. She cited the Court of Appeal decision in Erneo KidiIo & Another vs R., (Criminal Appeal No. 206 of 2017) [2019] TZCA 253 (22 August 2019) and George Claud Kasanda vs DPP (Criminal 3 Appeal 376 of 2017) [2020] TZCA 76 (27 March 2020). She added that the prosecution tendered sufficient evidence against the appellant. As to the sentence, Ms. Chema argued the sentence imposed was illegal as even the appellant was found to be 18 years, the proper sentence was not custodial but corporal punishment. She finally prayed this Court to quash the judgment, set aside the conviction and sentence and to order the trial court to inquiry into the appellant's age. The record bears testimony that on the date set for preliminary hearing, the appellant claimed that he was 16 years old and not 18 years old as the prosecution alleged. Due to this controversy, as to the appellant's age the trial court ordered the appellant to bring his birth certificate or any other document to prove that he is 16 years as he claimed to be. Unfortunately, the trial court did not conduct an inquiry to find out the appellant's age before trial. It is the position of law under section 113(1) of the the LCA that- Where a person, whether charged with an offence or not, is brought before any court otherwise for the purposes of giving evidence and it appear to the court that he is a child, the court shall make due inquiry as to the age of that person." 4 The trial court did not make an inquiry as to the age of the appellant. The law is clear on what ought the court should do when no inquiry is regarding the accused person is made. It states that the court should consider the age of the accused be the age he stated. Section 114(2) of the LCA states that- ’’ Without prejudice to the preceding provisions of this section where the court has failed to establish the correct age of the person brought before it, then the age stated by that person, parent, guardian, relative or social welfare officer shall be deemed to be the correct age of that person." Since the trial court failed to make inquiry as to the age of appellant as the law requires, then the correct age of the appellant was 16 years as he claimed to be. The court of appeal of Tanzania in Athanas Mbilinyi v. R., Criminal appeal No. 275 of 2020 CAT, held that- " The trial magistrate is ought to conduct inquiry into the age of the appellant in either of the way stated in s. 113(2) of LCA and in the event of failure he should have placed reliance on the age claimed by the appellant as per the requirement of s.114(2) of LCA. Failure to do so in our considered view, occasioned miscarriage of justice on the part of appellant as it left a lot to be desired. This is so because if it had been proved that the appellant was under age he 5 would have been arraigned before the Juvenile court in terms of section 98(1) (a) of the LCA and not the District court in which he was arraigned." It is this Court's finding that the district court wrongly tried the appellant as it had no jurisdiction. The appellant being 16 years was a child, hence it was the Juvenile court which had jurisdiction to try him. Thus, the appellant's trial was nullity. The only remedy open to this court is to quash the proceedings and set aside the conviction and sentence as I hereby do. The next question is what is the way forward? I examined at the evidence on record and formed an opinion that the evidence is sufficient for this court to order a retrial. However, looking at the sentence regime for a child offender, hesitate to order a retrial of the appellant by a competent court. For argument's sake let us take it that the appellant was 18 years old as the prosecution had alleged. The appellant being a first offender was liable for corporal punishment and not custodial sentence which he was made to serve. Section 131(2) of the Penal provides that- "131(2) Notwithstanding the provision of any law, where the offence is committed by a boy who is of the age of eighteen years or less, he shall- 6 (a) If a first offender, sentenced to corporal punishment only; (b) If a second time offender, be sentenced to imprisonment for a term of twelve months with corporal punishment; (d)Ifa third time and recidivist offender be sentenced to five years with corporal punishment." The Court of Appeal in Mngao Yohana Chacha v. R., Criminal Appeal No. 244 of 2020, held that; the punishment for rape committed by a boy who is of the age of 18 or less being a first offender shall be corporal punishment only. The appellant has been in prison serving an illegal sentence for 10 months. I am of the view that the sentence the appellant has served is stiffer than the sentence he was to suffer even if he was 18 years old as the prosecution had alleged. The proper sentence the appellant was to serve was corporal punishment and not custodial sentence. Thus, the appellant has already served the sentence. I do not find it just and propriety to subject him to a retrial. In the end, I allow the appeal, quash the proceedings, set aside the conviction and sentence. I hesitate to order the appellant to be tried by a competent court as he has already served the stiffer sentence than a competent court was legally mandate to impose. Consequently, I order the 7 appellant's immediate release from prison unless held there for any other cause. I order accordingly. Judge Court: Judgement delivered in the presence of the appellant and Ms. Ester Malima assisted by Ms. Rose Kayumbo for the Respondent. B/C. Ms. Fatina (RMA) present. John R. Kahyoza Judge 9. 8.2024 8