elemence kalolo petro and two others vs republic 2020 tzhc 3369 30 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA DC CRIMINAL APPEAL NO. 101 OF 2019 (Originating from Criminal Case No. 29 of 2019 from Mpanda District Court at Mpanda} ELEMENCE S/O KA LOLO @ PETRO ..................1st APPELLANT MAJUTO S/O KALOLO ...................................... 2nd APPELLANT SUMBA S/O KALOLO ...................................... 3rd APPELLANT VERSUS THE REPUBLIC.................................................. RESPONDENT Date of last Order: 06/08/2020 Date of Judgment: 30/10/2020 JUDGMENT C.P. MKEHA, J Before the District Court of Mpanda the appellants were arraigned in connection with an offence of Armed Robbery contrary to section 287 A of the Penal Code it being alleged that on 07/03/2018 at 21.00hours at Ikulu Area within Mpanda District in Katavi Region, the appellants, did steal one mobile phone make Itel valued at Tzs. 30,000/= and Vouchers valued at Tzs. 123,000/= from one Andrew Damiano and that, before such stealing they did use panga and firearm to hit and threaten the said Andrew Damiano in order to retain the stolen properties. At the conclusion of trial the appellants were convicted as charged and sentenced to be imprisoned for thirty (30) years. i In their joint petition of appeal the appellants put forward the following grounds of appeal: 1. That, the trial court erred at law by admitting the cautioned statements of the second and third appellants which were procured contrary to law. 2. That, the trial court erred in law by admitting the certificate of seizure which was not admitted by the appellants. 3. That, the trial court erred in law by convicting the appellants based on identification process which was conducted contrary to procedures governing the same. 4. That, the trial court erred in law by convicting the appellants basing on conflicting and inconsistencies adduced by the prosecution (sic) and 5. That, the trial court erred in law by convicting the appellants of the offence which was not proved beyond reasonable doubt. On the hearing date, the three appellants had nothing substantial in arguing their appeal rather than praying that they be discharged as they did not commit the offence with which they were convicted of. Mr. Mwashubila learned Senior State Attorney supported the appellants' appeal. According to the learned Senior State Attorney, the appellants' case before the trial court was not proved to the required standard. The learned Senior State Attorney submitted that, PW5 who prepared seizure certificate found the first appellant at the village office with the purported stolen properties and not at the searched premises. As such, PW5 was not sure whether the first appellant was really found in possession of the said things namely a coat, fake pistol and a machete. 2 The learned Senior State Attorney invited the court to expunge the seizure certificate from the trial court's record. The learned Senior State Attorney went on to submit that, while the 2nd and 3rd appellants had been convicted basing on their cautioned statements, the same were admitted in contravention of the law. The learned Senior State Attorney submitted that, despite the fact that the two statements were repudiated no inquiry was conducted. In his view the two statements were liable to be expunged. It is true that the appellants were not found with search proceeds filled on the Seizure Certificate. The testimony of PW5 is explicit that he found the appellants at Kapalala village office and not at the searched premises. The testimony of PW5 does not clearly state how the purported search was mounted. In the circumstances, I find myself compelled to accept the learned Senior State Attorney's invitation to expunge the said Seizure Certificate from the trial court's record. The same is expunged There is no denial that the 2nd and 3rd appellants had repudiated their cautioned statements at trial. No inquiry was thereafter conducted to determine voluntariness of the two appellants in offering the purported statements. It was therefore wrong for the two statements to be admitted into evidence. See pages 13, 14, 39 and 40 of the typed proceedings of the trial court. Accordingly, exhibits Pl and P6 are expunged from the trial court's record. In the absence of the Seizure Certificate and the two Cautioned Statements conviction of the appellants can not stand. I am therefore 3 compelled to quash the appellants' conviction. The appellants' conviction is quashed. The sentence earlier imposed upon the appellants is set aside. The court orders immediate release of all the three appellants from custody unless they are held therein for other lawful cause. Dated at SUMBAWANGA this 30th day of October, 2020. JUDGE 30/10/2020 Court: Judgment is delivered in the presence of the appellants in person and Mr. Mwandoloma learned State Attorney for the republic. C.P. MKEHA JUDGE 30/10/2020 of appeal explained. JUDGE 30/10/2020 4