20170918 TZHC Mwanza

1 l ;;_', IN THE HIGH COURT OF TANZANIA (IN THE DISTRICT REGISTRY) AT MWANZA · HC. CRIMINAL APPEAL No. -177 OF 2017 {Arising from the District Coµrt of Musoma at Musoma in Criminal Appeal No 103 of 2016) MICHAEL MASIN DE @ KITUNDU .. ................... ............. APPELLANT versus THE ·REP·B.LIC 11•.11 ■■ i.11 ■■■■ 1 1 ■■■■ 1111 ■ l!I I!·■■ 11 ■ 11 ■■■ ■ 11 ■ 111111••·• 1:1 11 • e ■ n ■ ■ s~ ■■ 11t1 ■■ 11 ■■ R·ESPONDENT 11 JUDGMENT 23 rd August & 18th September, 2017 J. A. DE-MEllO, J; Differentfrom the grounds of Appeal, State Counse.l D~rcas Akyoo, brings to the attention of the Court of the defective charge in relation to the particulars of offence that the Appellant has _been charg~d with. She is praying for a fr_esh Trial in line with the offence of .Armed Robbery contrary to section 287A of Cap. 16. The District Court overlooked this · as it convicted and sentenced the Appellant to a thirty ~ars (30) jail . term, based on th.e evidence of PW1 the doct~or a ·&eW2 the Police investigator and in the absence of the victim.\·,· . . /_ . l I have given myse!f due consideration and admittediy I share the position . . the State ·Counsel has. I will de<?! with this only grou·nd that Suo Motu Counsel brought it to the attention of the Court _as I begi~ with the way the charge and its par~iculars of offence complained of has been couched. It states; Charge: Armed Robbery: contrary to section 287A of the Penal Code ·cap. 16 . . . . RE 2002 as amended by Act No. 3 of 2011 PARTICULARS Of OFFENCE: MICHAEL S/O MASINDE @KITUNDU on the 7th daY. of June 2016 at Songe area within the District and Municipality of Musoma in Mara Region, stole cash TShs-. 10,000/ = and, one cellular phone made· HUAWEI valued at TShs. 80,000/ = all total valued at TShs. 90,000/ = the properties of AISHA 0/0 HUSSEIN. Section 287A of the law (supra) on which the Appellant has been charged provides as follows; "Any p~rson who steals anything and at or immediately after the time of stealing is armed with any dangerous or offensive weapon or instrument or is in the company of one or more persons, and immediately before or immediately after the time of the stealing uses or threatens to use violence to any person, commits an offence termed "armed r ~ and on conviction is liable to 2 < ,,• (. imprisonment for a minGmum t~rm_ of thirty years wHth or without - corporal punishment";· From the charge it is true that; it is incurably defective for missing the· essential ingredients for Robbery. Strictly speaking, in the aqsence of 'threat, actual violence, weapon or instrument' used against the victim, leaves a lot to be desired...In all fairness to the Appellant, he ought to know and, underst~nd the nature of offence he is going to face. This is -·in accordance with ~ection 1~2 of Cap. io stipulating; "Every charge or information shaH conta,in, and shaH be sufficient . . if it contains, a statement of the specific offence or offences with which tthe accused person ,is charged, together with whkh such. . .pa-rticula:rs as may be necessary for giving reasonable -information as to the nature_ of the offence charged". Offence of Armed Robbery contrary to section 287A of the Penal Code Act, Cap. 16 R.E 2002, nothing proves as to kind of weapon and, nature of the attack the_ victim was subjected to. This is not within- the per-view of the law under section 135 of Ca.p. 20 defining how charges are framed and worse even for a serious offence like this, she reiterated. Fatal as it appears, it is her prayers therefore to order for a fresh Trial accor~ingly. Whether this is the case or riot I find it wise to address it at this onset ourt's valuable time in dealing with the substantive Appeal. 3 , ( It istrite iavv that, the accused must know the nature of the case that faces him, which is only p9ssible if the charge ·discloses the essential element of the offence and this must match wh_at the particulars of offence. In yet another case ofisidori Patrice vs. R, Cdminal Appeal No. 224 - of 2007 (Unreported) the Court stated; "It is mandatory statutory requirement that every charge in a subordinate Court shall contain not only a stateme_nt of the specific offence with which the· accused is charged but such particulars as may be necessary for giving reasonable information as to the nature of -offence charged. It is now trite law that particulars of the charge shall disclose the essential elements ·or ingredients of the offence. This requirement hinges on the basic rule of Criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus of the offence with the necessary mens rea. Accordingly, the particulars, in order to give the accused a fair trial in enabling him . . to prepare his defence, must allege the essential facts of the offence and any intent specifically required by law". With due respect to the Trial Magistrate the judgment arrived to as a result of an incurably defective charge is highly fatal. The ground itself and raised · by State Counsel was enoug_h to dispose the Appeal. However, it is her prayers that for a Re-Trial, whose pr~quisite has been laid down in several cases to include this of Rt~';'_b~s. Dinu d/o Sombi & 2 Others Vol. 14 EACA 136 which held:~ ( "An order for a retda! ~s the proper order to make whe~ accused has not had a satisfactory Trial" .. I also ha\(e the advantage of perusing the case of Merali an_d Others vs. Republic (1971) HC_D n. 145 which. observed a similar view In the case of Ahmed Ali Dharatnsi Sumar vs R (1964) IE.A. 481 observed; "Whether an order for Re-Trial should be made depends on the particular facts and circumstances of each case but should only be made when the interests •Of justice require it and where it is likely not to cause injustice to an accusecl!rt. The same view of reasoning was made in the case of Fatehali Manji versus The ·Republic (1966) E.A. 343·in which the Court of Appeal of East Africa held; In general a retrial will be ordered when the original trial was illegal or defective; it will not be ordered where conviction is set aside because of insufficiency of evidence or for the purposes ·Of enabl.ing the prosecution for fiH the gaps in its evidence at the first trial. .. each case depends on its own fact, should only be made where interest of justice required ... ". Record from the proceeding and as already observed had only two witnesses in the absence of the victim Asha d/ o Hassan, mentioned in the charge. Much as the choice of witnesses is on parties themselves, the opting out of . . the victim left the case with hearsay evidence from her. The defective \ Affidavit draws a inference;:ti~s'deliberate or otherwise drafted to suit ~)/'- . -6 5 . < interest of the victim. A Re-Trial appears misplaced based on the above . . scenarios, for _no proper Trial was conducted and wars~ even based on defective charge. Similar position was held in the cases of Kashima Mnadi v_s. R, Criminal. App. No. _78 of 2011 ~nd Munziri. Amiri Muji_bu & Dioniz Kyakalao vs. R, Criminal Appeal No. 151 of 20.12, by Luanda & Kileo JA's respectively. It is for the foregoing reasons_ that, I quash the conviction, set aside the sentence· and, order the rel~ase of the Appellant· forthwith, unless held otherwise for any other lawful cause. Ordered accordingly. Judge 18th September, 2017. 6