20160919 TZHC Dodoma 1

S ..

IN THE HIGH COURT OF TANZANIA

AT DODOMA (APPELLATE JURISDICTION) (DC) CRIMINAL APPEAL NO. 63 OF 2015 (Original Criminal Case No. 251 of 2012 of the District Court of Dodoma District at Dodoma) E RASTO ELIAS () LUVANGA ........ .... .......n . ...i.•....• u.n... ..APPELLANT

VERSUS

THE REPUBLIC

RULING 1 & 19/9/2016 KWARIKO, J; Before the District Court of Dodoma appellant herein was charged with three counts of Warehouse breaking contrary to section 296 (a), Stealing contrary to section 265 and Receiving property stolen contrary to section 311 both of the Penal Code [CAP 16 R.E. 2002]. He denied the charge but at the end of the trial he was found guilty in all three counts was convicted and sentenced to five (5), three (3) and three (3) years imprisonment for the first, second and third counts respectively. The sentences were ordered to run concurrently. 1 S Upon being aggrieved by trial court's decision the appellant filed this appeal raising six grounds of appeal. However, when the appeal was called for hearing this court suo moto raised one legal issue for the parties to address as to whether section 214 (1) of the Criminal Procedure Act [CAP 20 R.E. 2002] was complied with during the trial as there was change of Magistrates. Addressing this issue Ms. Magoma learned State Attorney conceded that the said provision of law was not complied with when E. ANANGISYE, RM took over the trial from H. MOMBA, RM who had received evidence from two prosecution witnesses. That, E. ANANGISYE, RM did not give reasons of him taking over the trial and thus the omission was fatal to the proceedings. Ms. Magoma learned State Attorney thus argued this court to remit this case to the

trial court for the law to be complied with since the evidence on record is strong enough against the appellant. On his part the appellant took note of the said law but prayed the court to intervene since he has been in prison for long time and now only thirteen months have remained for him to complete his term of sentence. This court is to decide in relation to the legal issue. As rightly submitted by Ms. Magoma learned State Attorney the Magistrate E. ANANGISYE, RM ought to have given reasons why he took over trial from 2 H. MOM BA, RM and have parties' opinion before the trial continued. Thus, omission to do that vitiated the part of proceedings conducted by E. ANANGISYE, RM. Therefore, by this court's powers envisaged under section 214 (2) of the Criminal Procedure Act (supra) that part of proceedings is hereby nullified and set aside. Now, under normal course of things and as also argued by Ms. Magoma learned State Attorney this case would have been remitted to the trial court for the law to be complied with. However, this court, upon consideration this move would not be in the best interest of the appellant and the case. I have the following reasons; One, during the trial the appellant stayed in remand prison from October, 2013 to 05/8/2015 when he was convicted and sentenced and from there until now serving his five (5) years term of imprisonment. Therefore, the

appellant has been in custody long enough over the custodial sentence he would have received legally as per section 170 (1) (2) of the Criminal Procedure Act (supra). Thus, this court believes that this long stay in prison has been enough lesson to him. Two, the appellant's trial dragged for a long time hence to remit him there would amount to punishing him unnecessarily. The record shows that the appellant was arraigned in court first on 17/8/2012 where preliminary hearing was conducted on 19/2/2013 whereas PW1 and PW2 testified on 18/6/20 13. PW3 gave evidence on 3 1/10/2013, PW4 on 31/3/2015 and PW5 on 29/4/2015. 3 Three, despite of the charge mentioning one Calvin Itael Maimu of Dodoma as the complainant in this case but he did not testify and the prosecution ended-up promising that he would come but he did not. Therefore, with this trend of events it will be unjust to have to send the appellant to be subjected to yet another long wait to finalise his trial taking into account that it is the great part of the proceedings which has been nullified. Four, all 278 bags of sugar allegedly stolen by appellant were recovered hence mitigating the effect of the crime, if any. Consequently, this court finds that the best interest of the appellant and the case is not to subject the appellant to yet long wait for trial but to have him released (see also JUMA MHAGAMA V R, Criminal Appeal No. 71 of 2011, Court of Appeal of Tanzania, (unreported). Finally, the appellant's conviction is quashed and sentence is set aside. It is ordered that the appellant be released from prison unless he is further held there for other lawful cause. It is ordered accordingly. 4 X.

JUDGE 19/9/2016 4 Ruling delivered in court today in the presence of the Appellant, Ms. Nsana learned State Attorney for the Respondent Republic and Mr. Nyembe Court Clerk. "J o

JUDGE 19/9/2016 Cou:ht of Appeal Explained. I. -'- \•

ARIKO

JUDGE 19/9/2016 5