20080528 TZHC Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, C.).; MUNUO, ).A; And NSEKELA, iA.) CRIMINAL APPEAL NO. 48 OF 2005 BETWEEN 1. NGEKALI MKANDI } }..APPELLANTS 2.TUMAINIMLELI} AND THE REPUBLIC ... RESPONDENT (An Appeal from the Decision of the High Court of Tanzania, at Dar esSalaam) (Mlay, 3.) dated the 6th day of December, 2004 in Criminal Appeal No. 85 of 2004 I...... JUDGMENT OF THE COURT 25 April & 4 June, 2008 RAMADHANI, C. 3.: The appellants, Ngekali Mkandi and Tumaini MIeli, pleaded guilty to a charge of armed robbery c/ss 285 and 286 of the Penal Code and, so, were, convicted. Each was sentenced to serve thirt:y years in prison. Their appeal to the High Court was dismissed and hence this second appeal. On 15/06/2003 at Parakayo Area Gang 39, in Kilosa District, at about 23.00 hoUrs one Robert Mwegoha was going to' Morogoro to sell his 38 head of cattle. He was robbed the animals after he was attacked with bush knives and sticks and had to be taken to hospital. The trial / District Magistrate of Kilosa made the-foliwing-entty.: • 4flk 2 Court: Charge read over and explained to the accused person to (sic) the language understood by them an asked to plea (sic) there in Kiswahili. Mr. Mqomba: A plea of the accuseds in their own words: 1 st accused it is true 2 nd accused it is true Entered as a plea of guilty to the charge Insp. Said Sijaona narrated what happened and the following entry was made: Court: - On being asked as to whether they admit the facts as outlined by the prosecution through an interpreter not (sic) Mgômba the accused replies this (sic) we have heard the facts and admit them all. It is true we attached (sic) the grazer and stole the cows. As the facts as out lined by the prosecution and upon their own admission to the correctness I find• them guilty as charged and they are convicted thereof on their own plea of guilty as to the charge. In their first appeal the appellants, among other things, disputed their plea of guilty and said that they did not follow the proceedings because they did not understand Kiswahili. The learned State Attorney, Mr. Mapinduzi, pointed out that there was an interpreter. To that the appellants replied that the interpreter did not understand Kimasal and that they had been beaten. MLAY, 3., agreeing with the. State Attorney, dismissed the appeal and upheld the District Magistrate. 3 Before us the appellants were in person while the respondent/Republic was represented by Ms. Eveta Mushi, learned State Attorney, who conceded that the provisions of section 198(1) of the CPA were not followed as the record does not show that the interpreter was sworn before performing his task. Ms Mushi submitted that we should invoke our powers of revision under section 4 of the Appellate Jurisdiction Act whereby we quash the conviction, set aside the sentence and order a retrial. We agree with the learned State Attorney on the point of the swearing of the interpreter but in addition the facts, as narrated by the prosecution, leave much to be desired. For instance, the incident is said to have taken place at 23.00 hours when normally it would be very dark unless there was full moonlight. One wonders how were the appellants identified and hence arrested. It was not narrated that the appellants were caught with the stolen animals though there was an order that "Exhibit P2 38 cows be returned to Godfrey sb Adamson". It is doubtful whether or not there was even a prima fade case. We agree with the learned State Attorney that by using our powers of revision we quash the conviction and set aside the sentence of thirty years. The Republic may wish to prosecute again the appellants but they should seriously consider the period of four years and ten I.- 4 months the appellants have been serving the sentence meted out to them. DATED in DAR ES SALAAM, this 28th day of May, 2008. A. S. L. RAMADHANI CHIEF JUSTICE E. N. MUNUO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. (N (S .AJ2W'2 RA) o1 •• REGISTRAR N