20190604 TZHC Mbeya

IN THE UNITED REPUBLIC OF TANZANIA P I ' JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MBEYA) ATMBEYA CRIMINAL APPEAL NO. 196 OF 2016 (Appeal from the judgment of the District Court of Run gwe at Tukuyu, Hon. A. V. Tarimo DRM in Criminal Case No. 08 of 2016) GODFREY s/o RAMSON KASYANJO...................................APPELLANT VERSUS THE REPUBLIC...............................................................RESPONDENT RULING Hearing date: 2810512019 Ruling date : 04/06/2019 MONGELLA, J. The Appellant, Godfrey son of Ramson Kasyando was charged with rape contrary to sections 130(2) (e) and 131(1) of the Penal Code, Cap 16, R.E. 2002 in the District Court of Rungwe at Tukuyu. Godfrey Kasyando was alleged to rape one Zena daughter of Mwakalinga, a girl aged thirteen years. The rape incident was alleged to occur on 17th January 2016 at about 11:00 hours at Suma Villdge within Rungwe District in Mbeya Region. It was also alleged during the trial e. ~Afl Page 1 of 7 C' that Ramson met Zena on the way, carried her to the house of one Mwamwembe and raped her twice. The first rape incident took place in Bamboo woods and the second at the said Mwamwembe's house. During all these rape incidences, Ramson threatened Zena with a knife he was holding to stop her from shouting. Ramson pleaded not guilty and the prosecution had to call five witnesses to prove the case and in defence, Ramson called four witnesses including himself. Eventually, the trial District Court found Ramson guilty of the offence and sentenced him to thirty years imprisonment. Dissatisfied with that decision he appealed to this Court. On the date fixed for hearing of the appeal, Ramson appeared in person and the Respondent was represented by Ms. Hannarose Kasambala, learned State Attorney. Before the hearing could proceed, Ms. Kasambala raised her concerns on the conviction entered by the trial court. She argued that the Appellant was not convicted as per the requirement of law under section 235(1) and section 312(2) of the Criminal Procedure Act (CPA). She submitted that Section 3125 gives directions on the Page 2 of 7 manner of entering a conviction. It obliges the court to state the offence, the provision and law in which the accused is convicted. Ms. Kasambala cited the case of George Patrick Mawe and 4 Others v. The Republic, Criminal Appeal No. 203 of 2011 whereby the Court of Appeal (CAT) at page 4, quoting the case of Oroondi Juma v. Republic, Criminal Appeal No. 236 of 2012 (unreported), ruled that "non-compliance with the requirement to convict the accused as directed under Sections 235)1) and 312(2) of the CPA rendered the judgement of the trial court incompetent." She submitted that the CAT in George Patrick Mawe (supra) quashed the conviction, set aside the sentence and remitted the case file to the trial court for it to enter a proper conviction. She concluded by praying for this Court to quash the judgment of the trial court and remit the case file for a proper conviction to be entered. When invited to speak, the Appellant told this Court that he has waited for so long for his appeal to be determined. He was concerned about the time that will continue/ss while he is waiting for the trial court to rectify its mistake. Page 3 of 7 - I have gone through the judgment of the trial court and found at 1' page 15, the trial Magistrate wrote: "Having said that, / am satisfied that the prosecution has proved its case beyond reasonable doubt and therefore, the accused is hereby found guilty as charged and convicted thereto." Looking at the phrases in which the trial court purportedly convicted the Appellant, it is obvious that the requirements set under Section 312 (2) of the CPA were not fulfilled. The Section specifically states: "In the case of conviction the judgement shall specify the offence of which, and the section of the Penal code or other law which, the accused person is convicted and the punishment to which he is sentenced." Thus the trial magistrate as per Section 312 (2) was supposed to state the offence in which he convicted the Appellant, and the specific provision of the law in which the conviction lies. Adherence to the requirements of Section 312 (2) of the CPA has been over emphasized by the CAT and. this Court in a number of cases. In addition to the case of George Pafric Mawe (supra) cited by Ms. Kasambala, see also Kelvin Myovela v. The Republic, Criminal Appeal no. 603 of 2015; Elias Mpori v. The Republic, Criminal Appeal no. 405 of 2013; Aman Fungabikasi vs. Republic, Criminal Appeal no. 270 of 2008; Shabani Iddi Jololo and three others vs. Republic, Criminal Appeal no. 200 of 2006; John slo Charles vs. Republic, Page 4 of 7 Criminal Appeal no. 190 of 201land Hassan Mwambanga vs. ( Republic. Criminal Appeal no. 410 of 2013 (all unreported). In all these cases the CAT stated that the failure of the trial court to enter conviction is a fatal and incurable irregularity. If renders the purported judgment and imposed sentence a nullity and thus the same cannot be upheld by the High Court in the exercise of its appellate jurisdiction. In the case of Kelvin Myovela (supra), for instance, the CAT, at page 5 stated: "It is not sufficient to find an accused guilty as charged. Failure to enter a conviction renders a judgement invalid. In fact, there is no valid judgement without a conviction having been entered, as it is one of the prerequisites of a valid judgement. At page 7 the CAT also stated: "Since in the instant case, the trial court did not enter a conviction, the judgement and the subsequent sentence were a nullity. Since they were a nullity there was nothing which the High Court could have upheld." Following such defect in the trial coUrt judgement, the only remedy available has been remitting the case file to the trial court for it to enter a proper conviction in accordance with the law before passing a sentence. I therefore hereby ordertpr t1),e case file to be PageS of 7 remitted to the trial court for a proper judgement to be composed. I I as well hereby instruct the trial court the following: 1; The trial court should compose a legally acceptable judgement by including a proper conviction based on the same evidence adduced in court during trial. The judgement should comply with sections 235(1) and 312(2) of the Criminal Procedure Act, Cap 20 R.E. 2002; 2 The Appellant shall remain in custody and should be returned to the trial court for proper conviction by the trial magistrate or another magistrate in case the trial magistrate is no longer at the trial court; and upon compliance with the above instructions, the Appellant may wish to lodge his appeal afresh; The time to appeal shall commence from the date when a proper judgement of the trial court is pronounced to the accused person/appellant; For the interest of justice, the date of sentence of the accused shall remain the same date as he was put under confinement on the first time; The new judgement shall be completed within thirty (30) days from the date of this ruling. Page 6 of 7 U Order accordingly. ( L.M. MONGELLA JUDGE 04/06/2019 Dated at Mbeya this 4th day of June 2019 L.M. MONGELLA ) JUDGE 04/06/2019 Court: RU]rn delivered at Mbeya in Chambers on this 4th day of June 2019 in the presence of the Appellant appearing in person and Ms. Hannarose Kasambala, learned State Attorney representing the Respondent. Right of Appeal to the Court of Appeal has been explained. L. M. MONGELLA JUDGE 04/06/2019 Page 7 of 7