zawadi do kilembe vs republic 2009 tzhc 145 15 april 2009

IN THE HIGH COURT OF TANZANIA AT SONGEA DC. CRIMINAL APPEAL NO. 31 OF 2008 (ORIGINAL SONGEA DISTRICT COURT CRIM INAL APPEAL NO. 235 OF 2008) ZAW ADID/O K IL E M B E .............................APPELLANT VERSUS: THE R E P U B L IC .........................................RESPONDENT 18/3/2009 HEARING CONCLUDED 15/4/2009 JUDGMENT DELIVERED JUDGMENT; UZIA, J. This is an appeal from the decision of the District Court (Fovo Resident Magistrate), whereby the appellant was convicted of the offence of child stealing contrary to Section 169(1) of the Penal Code, Cap. 16 Vol. I of the Laws. She was sentenced to three years jail. Dissatisfied, the appellant has appealed to this Court. The record of the proceedings disclose that the appellant admitted the offence of child stealing, that on 27^/7/2008 at around 17.000 hours at Zanzibar Street within Songea Municipal stole the child known as Godfrey Ponela a child 1 of one month bom by Emelda Haule. In her memorandum of appeal the appellant did not tell anything valuable, four grounds of appeal are confusing in such away that no one can understand them except the author. When the case was brought for hearing, the appellant adopted the grounds of appeal and prayed to this court to acquit her because she was sick. Mr. Mwavanda, learned State Attorney, for Republic supported conviction, that, there was no legal grounds on which the appellant can rely because she pleaded guilty to the offence charged. The issue in this appeal is whether the plea was unequivocal. In the ♦Vi trial Court record, Republic alleged that on or about 1700 hrs on day of 27 July, 2008, Zanzibar street within Songea Municipal with intent to deprive a parent did fraudulently take the child called Godfrey s/o Ponera a child of one month. As to what transpired during the trial, I will let the trial Court’s record speak for itself:- Date: 29/8/2008 Coram: J.E. Fiovo, RM. PP: Insp. Nicco CC: Monica 2 Accused: Present. Court: Charge read over and explained to accused person (sic) asked to plea there to (sic):- Accused: “True” Court: Entered the plea of guilty to the charge. Sgd. J.E. Fovo, RM. 29/8/2008 PP: I pray to read the facts court p/granted. FACTS OF THE CASE: PP 1. that, accused is Zawadi Kilembe, Nyakyusa, 19 yrs, peasant Christian of Ngembambili. Accused: Admitted and (sic) 2. That accused is charged for child stealing c/s. 169 (1) Penal Code Cap. 16 R.E. 2002. Accused: Admitted. 3. That, on 27/7/2008 around 17.00 hrs. accused (sic) was at Zanzibar street - Songea. 3 Accused: Admitted. 4. That on that date and time at the locus in quo did steal one child name Godfrey Ponela, who is the child of Emald Haule. Accused: Admitted. 5. That, accused was arrested and taken to the police for further procedure (sic) Accused: Admitted. 6. That, on 29/8/2008 accused was taken in this Court charged as per charge sheet. Accused: Admitted. Court: Upon plea of guilty for the accused person and admission and the facts narrated by the prosecutor without any qualification, I hereby convict the accused person for the offence of child stealing c/s. 169(1) of the Penal Code Cap. 16. R.E. 2002 accordingly. Sgd. J.E. Fovo, RM. 29/8/2008 4 As indicated in the trial Court record, when the charge was read over and explained to the accused, he was asked to plead and he said. “True” and on being briefed of the facts, the trial Magistrate wrote “Admitted” he therefore entered a plea of guilty and convicted. From the foregoing, the word “True in itself does not imply that the accused unequivocally pleaded to the offence charged. At least the accused word’s would have been recorded - verbatim “it is true I stole a child” Normally the words of the accused person are to be recorded. Likewise, the accused person words would have been put in the record immediately after she admitted the facts given by the public prosecutor, i.e. “The facts are correct and I admit them”. It was an error for the trial magistrate to write the word “Admitted”, that word alone shows that the accused’s words did not come from his or her mouth. Coming to the issue of facts given by the Public prosecutor, it is my considered opinion that the facts as narrated cannot reasonably be said to amount to a full disclosure of the ingredients or elements of the offence charged. The facts appear to me to have amounted to an allegation that the appellant stole a child from her mother. The facts do not disclose fraudulent taking a child with intent to deprive a parent. 5 Had all these aforementioned elements taken into account, I would have dismissed the appeal, but with this background information in the trial court record, the appellant’s plea was equivocal and so the conviction was bad, it is hereby quashed and the sentence set aside. I order retrial before another competent Magistrate. JUDGE 15/4/2009 6