20180105 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA CRIMINAL APPEAL NO. 157/2016 (0 riginal from the District Court of Kyela, Criminal Case No. 78 of 2016) PASTOR s/o MWANGOSI .........................................APPELLANT VERSUS THE REP!JBLIC .................................................. RESPONDENT JUDGMENT Date of last Order: 2111212017 Date of Judgment: 0510112018 A.F. NGWALA, J. The Appellant Pastor Mwangosi was charged and convicted of Robbery with Violence c/s 285 and 286 of the Penal Code Cap. 16 R. E. 2002. It was alleged that on 121h day of June, 2016 at about 03:45 hrs at Ibanda area within Kyela District and Mbeya Region he stole cash Tshs. 4 17,000/= the property of one Ismail s/o Ibrahim. Immediately before or after such stealing he used a piece of metal to hit him on the head in order to obtain the said money. At the conclusion of the trial the appellant was found guilty and convicted of Robbery with Violence and sentenced to seven (7) years imprisonment. The appellant is aggrieved with both conviction and sentence. His Petition contains six (6) grounds of appeal which are summarized as follows:- Page 1 of 5 That the trial magistrate erred in law and facts when he convicted and sentenced the accused person without considering the doubts raised on the prosecution evidence. That the trial magistrate erred in law and in fact by failure to rule that the appellant had no case to answer. That the case was not proved beyond reasonable doubt. The appellant who was unrepresented prayed this court to adopt his grounds of appeal. The respondent Republic was represented by Mr. Rodgers the learned State Attorney who opposed the appeal. Mr. Rodgers argued that the appellant was seen at the scene of the crime by PWJ, the victim. The appellant took cash from the pocket of PWI. The appellant impliedly admitted to have involved himself in crime as he opted not to ask PWI questions. Mr. Rodgers argued further that the appellant confessed before PW2 who recorded the caution statement. PWI was the only eye witness who was called as a prosecution witness. Mr. Rodgers contended the prosecution case was proved beyond all reasonable doubts. The conviction and sentence imposed upon the appellant was proper. He therefore prayed the appeal to be dismissed. The evidence of PWI (the victim) in the record shows that PWI testified to have known the appellant before the incidence. PWI did not tell the trial court how he knew the two bandits including the appellant. PWI failed to mention the name of the second bandit who hit him with the iron bar. If real PWI recognized the bandits at the scene of the crime he ought to have described the 2nd bandit and Page 2 of 5 explain how he knew them. The mere allegation that he knew them before the incident leaves a lot of doubts as to the identity of the appellant and that other person who was never arraigned in court. PWI testified that the person who was with the accused hit him on the head with the iron bar and on the feet. Thereafter they took from his pocket Tshs.417,000/=. There was no evidence to prove that it was the accused who took the money or that the accused hit the victim with the iron bar. In the Judgment by the trial learned Magistrate, it was held that the case against the appellant had sufficiently been established. It reads thus:- "This court found that prosecution side proved the case beyond the reasonable doubt. The 1 & 2 have the accused find guilty for the offence he was charged and he is hereby committed." The learned State Attorney on behalf of the prosecution stated that there was no previous record of the appellant. After mitigation the trial magistrate proceeded to sentence him to seven (7) years imprisonment. There was no compliance with the provisions of Sections 235 (1) and 312 (2) of the Criminal Procedure Act [Cap. 20 R. E. 2002] Section 235 (1) of the Criminal Procedure Act reads:- "235- (1) the court having heard both the complainant and the accused person and their witnesses and the evidence, shall convict the accused and pass sentence upon or make an order against him according to law or Page 3of5 shall acquit him or shall dismiss the charge under Section 38 of the Penal Code." The mere statement by the learned trial District Magistrate in her Judgment that, "the accused is found guilty for the offence he was charged" does not amount to conviction as stated in the afore mentioned provision of the law. In the case of Elias Mwangoka @ Kingoli v. Republic, Criminal Appeal No. 25 of 2015, the Court of Appeal of Tanzania quoting with approval its decision in the case of Marwa Mwibahi v. Republic, Criminal Appeal No. 7 of 1997 (unreported) stated that:- "Although there was a finding that the appellant was guilty, he was not convicted before he was sentenced. This was itself irregular. Sentence must always be preceded by conviction whether it be under Section 282 of the Criminal Procedure Act, where there is a plea of guilty or under section 312 of the same Act, where there has been full trial." Section 312 (2) of the Criminal Procedure Act reads:- "In the case of conviction the Judgment shall specify the offence of which and section of the Penal Code or other law under which the accused person is convicted and the punishment to which he is sentenced." In the instant appeal the quoted provisions were not complied with. In the other case of Hassan Mwambanga v. Republic, Criminal Appeal No. 410 of 2013 (unreported) the Court of Appeal of Page 4 of 5 Tanzania went on emphasizing on the position by stating clearly that:- "It is now settled law that, failure to enter conviction by any trial court is fatal and incurable irregularity, which renders the purported judgment and imposed sentence a nullity and the same are incapable of being upheld by the High Court in the exercise of its appellate jurisdiction." In view of the cited cases above, it is crystal clear that the sentence that was imposed upon the appellant in the present case was invalid for want of compliance with the requirement of the law. In the normal situation, this court would have nullified the lower court's findings and order a retrial of the appellant following the above identified irregularity. However, in the circumstances of this case, it is not in the interest of justice to order a retrial. In this regard, it is a fact that the appellant has stayed in prison for almost one year and a half. In my considered view, he has learnt enough that criminality does not pay. Consequently I allow the appeal for the reasons stated above. Accordingly the conviction and sentence by the 'trial court are hereby quashed and set aside. The appellant should be released from custody forthwith unless he is lawfully held for a lawful cause. A.F. Ngwala Judge 05/01/2018 Page 5 of 5