20110330 TZCA Tanga

,., IN THE COURT OF APPEAL OF TANZANIA ATTANGA (CORAM: MSOFFE, J.A., LUANDA, J.A., And MANDIA, J.A.) CRIMINAL APPLICATION NO. 1 OF 2011 THE DIRECTOR OF PUBLIC PROSECUTIONS ............... APPLICANT VERSUS I NYANGA JULIUS ............................ ~ ......................... RESPONDENT (Application from the decision of the Court of Appeal of Tanzania at Tanga} (Msoffe, J.A., Luanda, J.A., And Mandia, J.A.) dated the 23 rd day of March, 2011 in Criminal Appeal No. 331 of 2009 RULING OF THE COURT 30 & 31 March 2011 MSOFFE, J.A.: I This application taken at the instance of the applicant Director _of Public Prosecutions and filed on 25/3/2011 under the provisions of Rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 has a direct bearing on that portion of this Court's judgment in Nyanga Julius v Republic, Criminal Appeal No. 331 of 2009 ( unreported) which reads:- 2 ... save that the Resident Magistrate's order that the twelve . strokes should be administered ''six strokes in and six strokes out" is not borne out by the law ... save that in exercise of our revisional jurisdiction under section 4 (2) of the Appellate Jurisdiction Act (CAP 141 Vol. IV R.£ 2002) we hereby set aside the order for the corporal punishment of whipping by instalments. Instead, there will be only one instalment of twelve strokes. Without hesitation, we are of the view that in making the above revisional order we erred in law. We say so because the appellant was charged with and convicted of armed robbery which is a scheduled offence under Part III of the Corporal Punishment Act (CAP 17 R.E. 2001), hereinafter the Act. Under section 12 (2) of the Act it is clearly stated that a sentence of corporal punishment when imposed in respect of an offenoe under Part III shall consist of twelve strokes. And section 12 (3) of the Act is also clear that notwithstanding the provisions of section 8 (3) of the Act a sentence of corporal punishment referred to in sub-section 2 of section 12 shall be carried out in two instalments, each consisting of 3 six strokes, the first instalment at the commencement of the term of imprisonment and the other immediately before the prisoner is finally released from prison. Ms. Pendo Makondo, learned State Attorney representing the applicant, agrees that much; and indeed she argued the application to the above effect. On the other hand the respondent, being a layman, did not, understandably, assist us in the above legal point. From the above exposition of the law it follows that the trial Resident Magistrate did not err in law in his order that the twelve strokes be administered "six strokes in and six strokes out" which in effect meant that the instalments were to be carried out in line with the dictates of section 12 (3) of the Act. For the above reason, we hereby allow the application. The revisional order we made in Criminal Appeal No. 331 of 2009 is accordingly vacated. 4 DATED at TANGA this 30th day of March, 2011., , , I I \ · J.H. MSOFF~ JUSTICE OF AP.PEAL i i ; f ! i I ' '