the director of public prosecutions vs salum so ally hemedi 2023 tzhc 21017 1 september 2023

THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 29 OF 2022 (Originating from the Resident Magistrate’s Court of Mtwara, at Mtwara, in Criminal Case No. 122 of 2021) THE DIRECTOR OF PUBLIC PROSECUTIONS ————----— APPELLANT VERSUS SALUM S/O ALLY HEMEDI....... -........ —.......... —---------- RESPONDENT Date of last Order. 07.08.2023 Date of Judgment: 01.09.2023 JUDGMENT Ebrahim, J.: The Respondent herein was arraigned, convicted and sentenced at Mtwara Resident Magistrate Court vide Criminal Case No. 122 of 2021. The said respondent was charged with the offence of assault causing actual bodily harm contrary to Section 241 of the Penal Code (Cap. 16 R.E 2019 Now 2022]. According to the particulars of Page 1 of 6 the offence, the prosecution alleged that on 26th day of November, 2021 at Ziwani area: within Mtwara District in Mtwara Region the Respondent assaulted One Mohamed Ismail by using a bush knife on his foot and head. As a result, he caused him to suffer bodily harm. The Respondent pleaded guilt and the trial court rendered its ruling on 27th January punishing sentenced the Respondent. The trial court ordered payment of a fine at a tune of Tanzania Shillings One Hundred Thousand (TZS. 100,000/=) or the Respondent to serve one year imprisonment in default thereof. Following the dissatisfaction with the imposed fine and sentences by the trial court against the Respondent, the Director of Public Prosecutions (Appellant, '’DPP") filed one ground of appeal to this court namely; 1. The Honourable trial Court erred in law and facts for imposing lenient sentence against the Respondent. This case proceeded exparte against the Respondent following his failure to enter appearance before the court of which the exparte proof was ordered on 10.07.2023. Page 2 of 6 When this case came for hearing, Mr. Edson Mwapili, the [earned State Attorney represented the Appellant. Upon perusal of the record of the typed proceedings at page 6 and 7, the court observed that the Respondent was not convicted by the trial court. The learned trial Resident Magistrate did not convict the Respondent when he stated: RULING "Accused has pleaded guilty to the charge before confessed (sic] to BMFC (Brief Material Facts of the Case). My opinion is that such a plea is unequivocal because the accused has not been compelled, threatened, intimidated nor enticed upon his pleading but on his own will and voluntariness, PREVIOUS CRIMINAL RECORDS MITIGATION FACTORS SENTENCE Given into account all criterion in sentencing I how sentence the convict to pay a fine of Tsh. 100,000/- (one hundred thousand only] in default to serve a year imprisonment. Sgd: M.F. Esaniu - RM 27.01.2022.” Page; 3 of 6 In that regard, I would have invited the parties to address the Court on the conviction of the respondent. Nonetheless, this court suo motto noted that the trial Magistrate sentenced the accused without convicting him, first contrary to Section 235 fl.) of the Criminal Procedure Act [Cap 20 R.E. 20221. which read as follows; “235 - (1) The court, having heard both the complainant and the accused person and their witnesses and the evidence, shaft convict the accused person and pass sentence upon or make an order against him according to law or shall acquit or discharge him under section 38 of the Penal Code.” [Emphasizes added.] In the case of Omari Hassan Kipara v. Republic, Criminal Appeal No. 80 of 2012, CAT (unreported) it was held that; "In principle, where the trial court may have been satisfied that evidence established the guilt of the accused but did not proceed to convict as demanded by Section 235 (Tj of the Criminal Procedure Act, such judgment is a nullify; so is any other judgment on appeal based on such judgment. Both such judgments cannot escape the wrath of being quashed and the sentences thereof being set aside.” Page 4 of 6 According to the records the Respondent has not been convicted. Procedurally and legally, one has to be convicted before being sentenced. It was further cemented in case of Shaban Iddi Jololo and three others v. Republic, Court of Appeal at Dodoma (unreported) that; 'The absence of a conviction entailed that one of the prerequisites of a true judgment in terms of section 312 (2) of the Act would be missing. The subsection provides that: "(2) in the case of conviction the judgment shall specify the offence of which, and the 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 same case at page 7 the Court held that; ‘‘Failure to convict, there is no valid judgment upon which the high court could upheld or dismissed." [Eph a size added]. Thus, since there is no conviction, there is also no judgement on appeal before this court because conviction is an important aspect of the ruling/judgment. In Jonathan Mluguani vs. The Republic, Criminal Appeal No. 15 of 2011 (unreported); The Court reiterated that failure on the part of the Page 5 of 6 trial court to enter a conviction is a fatal irregularity which renders the subsequent proceedings and the judgment of the first appellate court defective. In the circumstances therefore I invoke the revisional powers of this Court under Section 373 (1) (b) of the Criminal Procedure Act [Cap. 20 R.E 2022], and declare a nullity and quash the sentence of the trial court which was not preceded by a conviction. Consequently, I remit the records to the Resident Magistrates’ Court of Mtwara at Mtwara before the same Resident Magistrate to convict the Respondent procedurally proceed with antencedants and mitigation and impose appropriate sentence in compliance with the law. Accordingly ordered. JUDGE. Mtwara. 01.09.2023. Page 6 of 6