Elisha Victor Msimbe

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY)

AT MOROGORO CRIMINAL APPEAL NO.64 OF 2023 (originating from Criminai Case No.97 of 2023 in the District Court of Mvomero at Mvomero)

ELISHA VICTOR MSIMBE APPELLANT

VERSUS

THE REPUBLIC RESPONDENT Date of Last Order: 10.06.2024 Date of Judgement: 10.06.2024

JUDGEMENT MAGOIGA,J. The appellant, ELISHA VICTOR MSIMBE aggrieved with the decision of MVOMERO District Court in Criminai Case No.97 of 2023 (the trial Court) appealed to this court armed with 8 grounds of appeal but for the reasons to be apparent in this judgement will not produce them herein. When this appeal was called on for hearing,the appellant was represented by Mr. Ignas Punge, learned advocate ready for hearing. On the other hand, respondent, the Republic, was represented by Mr. John Mkonyi and Ms. Monica Matwe, learned State Attorneys ready for hearing. However, the learned Attorneys considering grounds of appeal number 6 and 7 and what transpired in the record of appeal, it is obvious that, the trial failed to comply with section 312(2)of the CPA by failure to sentence the appellant and failure to record mitigation before sentencing the appellant. These two omissions, according to the learned Attorneys, were crucial in the administration of justice, insisted. In the circumstances, Ms. Matwe prayed that this court allow the appeal on these two grounds and remit the case file to trial court to first record mitigation factor and aggravating factors, if any, and proceed to sentence the appeliant in accordance to the dictate of the law. Mr. Punge, learned advocate for the appellant, without much ado, had no issue with the recourse suggested by the learned Attorney, in

this appeal. Having considered the record of appeal and grounds of appeal number 6 and 7 and as correctly argued by both learned trained minds for parties, no dispute that after conviction of the appellant, the record is silent of what happened. The provisions of section 312(2) provide for mandatory procedure in case of conviction of an accused person. For easy of reference the said section provides; "Section 312(1) NA (2)I the case nf conviction the ludpement shall specify the offence of which, and the section of the Penai Code or other written iaw the accused person is convicted and the punishment to which he is sentenced." (Emphasis mine). Going by the wording of the iiterai wording of the above quoted sub section 2 of section 312 of the CPA, the mandatory duty to specify is not oniy iimited to the offence which the accused is convicted but, in my respective opinion, it goes specify the punishment which the accused is sentenced. No doubt,this was not done in this appeai. The triai magistrate ended up at page 8 of the judgement to convict the appeiiant as charged but punishment was specified to have been imposed to the accused person as required by iaw. In the case of Masoiwa Samweii Vs. Repubiic, Criminai Appeai No. 206 of 2014, (CAT) the highest Court of the iand insisted the importance and mandatory compliance of that section, in particular, the specifying of the section

of conviction and sentencing and ordered a retrial where there was both problematic conviction and sentencing. Guided by the above decision, and in the light of the foregoing shortcoming in this appeai, and for the interest of justice, I hereby allow the appeai on those two grounds of appeai and direct that, this case file be remitted back to the triai Magistrate and dutifully comply with mandatory provisions of section 312 (2) of the CPA. More directions are that the trial Magistrate must also consider both aggravating and mitigating factors before sentence is entered. The appellant shall In the meantime remain in custody awaiting his sentence. It is so directed and ordered Dated at-Mfir^ogoro this loth day e, 2024 OORT 0^ C ■5: UJ z v— S.M. MAGOIGA

JUDGE 10/06/2024 COURT: This judgement delivered under my Hand and Seal of this court In chambers this 10^ day of June, 2024 In the presence of Mr. Ignas Punge learned for the appellant and Mr. John Mkonyl, learned State Attorney for <r o Q> :2r > S.M. MAGOIGA

JUDGE 10/06/2024