sabato mango vs republic 2009 tzhc 179 16 may 2009

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 142 OF 2008 (Original Criminal Case No. 122 o f2008 of the District Court ofBunda District at Bunda. Before R. B. Maganga Senior District Magistrate) SABATO MANGO ............................................... APPELLANT (Original Accused) Versus THE REPUBLIC............. .....................................RESPONDENT (Original Prosecutor) 15.05.2009 - 19. 05.2009 JUDGMENT G. K. RWAKIBARILA. J Appellant Sabato Mango was accused No.l in Bunda1 District Court Criminal Case No. 122 of 2008. He was convicted on his own plea of guilty of stealing c/s 265 of The Penal Code,* Cap. 16 (Vol. 1, R.E. '2002) and sentenced to four years imprisonment. This is his appeal against both conviction and sentence. It is revealed from records of the trial district court that, appellant was tried with four co-accused who also pleaded guilty to that offence. They were accused No. 2 Peter s/o Charles; i , - I * i ‘ *: i i l l ' d accused No. 3 Juma s/o Nyemondo, accused No. 4 Mujahiri I s/o Malima and accused No.5 Magesa s/o Mjarifu. Unlike l appellant's custodial sentence, the four co-accused were each! < I ! ’ sentenced to six months conditional discharge in terms of Section 38 (a) of The Penal Code (supra). And this may have, been the reason why they didn't lodge any appeal against their conditional discharge sentences. Appellant was absent when this appeal was heard because he informed the court in a letter marked Exhibit A1 how he was not willing to attend. But Ms. Mrema, learned State Attorney who appeared for the Republic did not support the conviction. In her oral submission before this court, Ms Mrema raised: several grounds to illustrate how the pleas of appellant and the four co-accused were equivocal. The major ground by this learned State Attorney was that each accused in that case uttered that: "It is true that we stole!', wherever the charge was read over to them. According to Ms Mrema, each accused was supposed to enter a plea in his own capacity and not in the joint form like: "westole!'. \ In the circumstances of this matter, it was disclosed .ini, 1, 1 H fi facts of the case which the prosecutor narrated-in court that! appellant is the one who forced the said four co-accused to steal 60 pieces of fishnets when they were in waters of the famous Lake Victoria, just near Busekera Island in Bunda District. Facts of that kind don't reflect what appellant and his four co-accused 2 stated in their pleas. So that while the plea o f each accused'put it how stealing was done jointly, the facts which were narrated tend to show that appellant forced his four co-accused to steal. * A situation of this kind reveals differences between what were recorded as pleas and facts which were narrated. Hon. Mrosso, J (as he then was) took into account a situation of that kind in Keneth Manda Vs Republic (1993) TLR 107 (HC) and held that: "An accused person can only be convicted on 'his own piea o f guilty if it is ascertained that he has accepted as correct facts which constitute the ingredients o f the offence charged. " In the material situation it is not proper to connect the plea of "we stole!' and appellant forcing four co-accused to steal. The plea which appellant and four co-accused made was therefore equivocal. The conviction against appellant is quashed and the sentence of four years imprisonment is set aside. He should be released forthwith from prison unless otherwise confined there for other justifiable reasons. The next item for consideration is the fate of four co­ accused who were sentenced to six months conditional discharge. Records of the lower court show how they were sentenced on 24.07.2008 and therefore their non-custodial sentences have already expired. It follows that for the benefit of their future clear records, they are merely awarded an order for acquittal, although they didn't appeal. G. K. Rwakibarila JUDGE 16.05.2009 Date: 19.05.2009 Coram: Hon. G. K. Rwakibarila, J Appellant: Absent For Republic: Mr. Mkemwa, SA B/C: A. Kaserero Court: Judgment delivered at Mwanza this 19th day of May, 2009 and right to appeal in time has been explained. G. K. Rwakibarila , JUDGE • i- I I At Mwanza 1: ' -\ 19.05.2009 4