20170802 TZHC Dar es Salaam

~,,,( JJ ·z;LUA~ :iN THE HIGH COURT ()f ~~NZANIA :'.'.J AT DAR ES SALAAM CRIMINAL APPEAL NO. 01 OF 2017 (Originating from the District Court of Kilosa at Kilosa, Criminal Appeal No. 196/2016) SASIME MHULUKE @ RAMADHANI ....... . APPELLANT VERSUS THE REPUBLIC ......... RESPONDENT JUDGMENT Date of last order 25/7/2017 Date of Judgment 02/8/2017 KITUSl,J The facts forming the basis of this case are very strange. In the first count the appellant Sasime Mhuluke @ Ramadhani was · charged before Kilosa District court, with Armed Robbery contrary .. to section 287A of the Penal Code Cap 16. It was alleged that on 5th June, 2015 at about 1:00 hours at Linganga Nguvukazi area within the District of Kilosa in Morogoro Region, the appellant stole Tshs . .200,000/= the property of Solomon Mwakipesile and immediately before or after threatened the victim with a dagger and sic "crab" to obtain the money. 1 -. l In the second and third counts, the appellant was charged with Rape under section 130 (1) (2) (e) and 131 of the Penal Code. It was alleged in respect to the 2nd count that on the same date and at 02:00 hours, the appellant had carnal knowledge of one Bertha d/o Michael a woman aged 50 years. In the third count the appellant had carnal knowledge of one Amina d/o Mwakipesile a woman aged 65 years, on the same date at the same place and at about 02:05 hours. In the fourth count the appellant was charged with unnatural offence contrary to section 154 (10 (a) (2) of the Penal Code, it being alleged that on the same date and at the same place at 02:05 hours the appellant had carnal knowledge of Amina d/o Mwakipesile aged 65 years against the order of nature. Solomon Mwakipesile (PWl) and Amina w/o Mwakipesile (PW2) a family of peasants living at Nguvukazi Lugunga Village testified to the effect that on 5th May, 2016 at night, the appellant whom they know well and regarded as their own son, arrived at their home. At first PW2 unsuspectingly addressed the appellant in a friendly way by asking him what could have been the matter to make him call at such odd hour. Little did PWl and PW2, aged 2 __ .. , 72 and 65 years respectively, know that the appellant was on a bad mission. Appellant's response was that the family of PWl and PW2 was unwanted in that village which was meant for pastoralists so he instructed them to vacate, threatening them with a machete. In response to the matching orders PWl, PW2 and other members of their family started to move away, PWl having a tough way of it because he had feeble feet due to old age. PWl gave the appellant Tshs. 200,000/= hoping that it would cool him down, but it did not. The appellant allegedly ravished PW2 both vaginal and anal, amidst protests by the victim that she had not had sex for the last five years. Then the appellant proceeded to have sex with another female member of the family who did not testify during trial. When the prosecution had closed its case, the appellant is recorded to have stated as follows when addressed in terms of section 231 (1) of the Criminal Procedure Act Cap. 20:- 3 "I do not know how to defend myself. I am not even interested indefending myself". At the end of the day the trial court sentenced the appellant to 30 years imprisonment, ordering the sentence to "run concurrently on all counts". The appellant has appealed against the conviction and it immediately dawned on me that the trial court did not convict him. I asked Ms. Honorina Munishi learned State Attorney to address the court on this point. The appellant was unrepresented but made a surprisingly useful submission as we shall soon see. The learned State Attorney submitted that since the appellant was not convicted then this court should return the record to the trial court for it to rectify that error by entering the conviction. She also submitted that the sentence is omnibus as it does not show on which counts the appellant has been so sentenced, and expressed the dilemma that may result in case the appeal partly succeeds and is partly dismissed. The appellant's submission was that he is not to blame for the omission which is purely caused by the court. He just prayed 4 - - ~ -- - - - - that his freedom be restored and said there are decisions of the court of Appeal in which appellants have been set free in similar circumstances. He handed to the court a copy of judgment in the case of Ally Rashid @ Masika Versus the Republic, Criminal Appeal No. 219 of 2006 CAT at Dar es Salaam (unreported). The general rule is that found under section 235 (1) of the CPA which requires sentencing to follow after one has been convicted. The available jurisprudence in this regard shows that when an appellate court notes or its attention is drawn to the fact that no conviction was entered by the trial court, it will order remittance of the record to the trial court to rectify the error. The cases of Amani Fungabikasi Versus the Republic, Criminal Appeal No. 270 of 2008 and, the others cited in the case of Ally Rashid @ Masika (supra), and the recent decision of the Court of. Appeal in the case of Elisa Patrick Versus The Republic, Criminal Appeal No. 75 of 2015, CAT at Mbeya (unreported) support that trend. With respect I agree with the appellant that it is not in every case that courts have returned records to the trial court for rectification of the error as to conviction. In the case of Ally 5 ------ ~ Rashid @ Masika (supra) for instance the Court of Appeal observed:- "What remains is to decide what should be done now. As rightly submitted by Mr. Maugo, ordinarily, in such circumstances, the proper order would be to remit the case file back to the trial court for it to compose a _proper judgment in accordance with the law. _ But each case must be decided in the light of its own facts guided by the interests of justice" (underlining mine). What are the interests of justice in this case? It requires reference to the proceedings so as to determine that question· including the period during which the appellant has been in custody. In doing so I think it suffices to say that the fact that the appellant chose to remain silent when called upon to testify in defence is very relevant. I think it is also relevant to note that the appellant has been in prison for less than a year. 6 On the basis of these factors, I order that the casefile be - -- returned to the trial court for rectifyi_ng _the_ err_ors as _to conviction and sentence. ~CL~ I.P~it~si JUDGE - 2/-8/2017. - _ -- __ ) 7