FARAJA MWAMBAPA JUDGEMENT

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA PC. CRIMINAL APPEAL NO 19389 OF 2024 (Originating from the District Court of Rungwe at Tukuyu in Criminal Appeal No. 9919 of 2024 and Ikama Primary Court in Criminal Case No. 23 of 2024) FARAJA MWAMBAPA……………….………..………………APPELLANT

VERSUS PATRICK MWAKIPUBILE…..……………………………..RESPONDENT

JUDGMENT Date: 14 November 2024 & 14 February 2025 SINDA, J.: The appellant was charged with the offence of cattle stealing c/s 268 (1) (3) of the Penal Code, Cap 16 R.E 2022 (the Penal Code). He was convicted and sentenced to serve five (5) years imprisonment by the Ikama Primary Court (the Trial Court). The particulars of the offence are that on 7 November 2023, around 13:00Hrs at Kitali village within Rungwe District and Mbeya Region, the 1 appellant stole a cattle worth TZS 950,000/= belonging to one Patrick Mwakipubile. When the charge was read over to him before the Trial Court, he admitted to the offence and was convicted on his plea of guilty. He later unsuccessfully appealed before the District Court of Rungwe at Rungwe (the District Court). Dissatisfied with the decision of the District Court, he brought this appeal on the following grounds: 1. That the Trial Court erred in law and fact when convicted and sentenced the appellant without taking into account that the appellant pleaded guilty as a result of misapprehension since nowhere the respondent was shown the ground of cattle to be stolen.

2. That, he didn’t steal the cattle because he was keeping 6 cattle of the respondent and his own cattle. The respondent gave him his cattle purposely for keeping upon the payment of Tshs 50,000/= per month. The respondent didn’t pay him for the period of 25 months equal to TZS 1,250,000/=.

3. That the prosecution side erred in law and fact by failing to prove the incident beyond reasonable doubt. 2 4. That the trial Magistrate erred in law and facts by convicting the appellant for failure to evaluate evidence adduced by the respondent.

5. That the trial court erred in law and fact when convicted the appellant only at the single and last plea of guilty without giving him another chance to determine what he said.

6. That the trial court erred in law when convicted and sentenced the appellants without considering deeply on how every appellant was involve in the allegation.

7. That the trial court erred in law by not giving the appellant an opportunity to explain the nature of the said offence, he only based on the statement from the police station. Hearing of the appeal was by way of written submissions. The appellant was represented by Mr. Felix Kapinga, learned counsel. The respondent appeared in person, unrepresented. In his submission in chief, Mr. Kapinga opted to argued only the third ground of appeal and abandoned the rest of the grounds. He was of the view that the burden of proof in criminal cases is upon the prosecution, whose standard is beyond reasonable doubt. He stated that the charge was not proved beyond reasonable doubt because the provision that was 3 used to charge the appellant section 268 (1) & (3) of the Penal Code only provided for punishment for stealing an animal. That, the provision creating the offence was not there. That, the District Court in its proceedings inserted section 258 of the Penal Code while the appellant was not charged with the said provision before the Trial Court. He cited the case of Fai Juma Bayonga vs. Republic, Criminal Appeal No. 01 of 2021 High Court at Songea to support his argument. Mr. Kapinga further submitted that the complainant’s statement revealed that the appellant agreed to pay money to the respondent as compensation for the cattle he sold. Unfortunately, the appellant failed to pay the

money on time and the respondent instituted a civil case instead of a criminal case. Submitting against the appeal, the respondent argued that the matter is a criminal case involving cattle stealing contrary to section 258 and 268 (1) and (3) of the Penal Code. That when the charge was read to the appellant, he pleaded guilty and the Trial Court convicted him on his unequivocal plea of guilty. The respondent cited the case of Ramadhani Bakari Yusuph @ Dodo vs. The Republic, Criminal Appeal No. 552 of 2021. He also 4 referred to Section 360 (1) of the Criminal Procedure Act [Cap 20 R.E 2022] (the CPA). Regarding Mr. Kapinga’s submission that the charge was not proved beyond reasonable doubt. The respondent termed the same to be a new issue which was not determined by neither the Trial Court nor the District Court. He explained that the legal effects of introducing new issues not determined by the Trial Court was well elaborated in the case of Hadija Ally vs. George Masunga Msingi, Civil Appeal No. 384 of 2019. Winding up his submission, the respondent addressed Mr. Kapinga’s contention that the parties had an agreement to pay compensation on the stolen cattle. Therefore the matter was to be filed as a civil matter and not criminal case. The respondent was of the view that these are mere words which are not supported by any evidence. He submitted that all the new facts which have

never been raised and determined by the Trial Court and the District Court, cannot be dealt with in this court, since it has no mandate. He cited the case of Hadija Ally vs. George Masunga Msingi (supra). No rejoinder submission was filed by Mr. Kapinga. 5 I have considered the Trial Court and District Court’s records and the parties' arguments. Mr. Kapinga argued that the charge was not proved beyond reasonable doubt because the charge sheet does not create an offence of cattle theft. I agree that the District Court in its proceedings inserted section 258 of the Penal Code while the appellant was not charged with the said provision before the Trial Court. The charge sheet used to arraign the appellant before the Trial Court shows that the appellant was charged with the offence of cattle theft contrary to section 268 (1) and (3) of the Penal Code. The court agrees that the said provision of the law does not create the offence of cattle theft but provide for the punishment for a person convicted of the offence of cattle theft. Section 268 (1) and (3) of the Penal Code provides that: (1) Where the thing stolen is any of the animals to which this section applies the offender shall be liable to imprisonment for fifteen years. (2) …. (3) This section applies to a horse, mare, gelding, ass mule, camel, ostrich, bull, cow, ox, ram, ewe, wether, goat or pig. 6 Section 268 (1) clearly

provides for punishment to be imposed to a person convicted of an offence of stealing any animal which as per section 268 (3) includes a cow. As such, the offence of cattle theft laid against the appellant was supposed to be preferred under section 265 and 268 (1) of the Penal Code. See: Republic vs. Abasi Ibrahim (1978) LRT n. 65 where when the court was dealing with the issue of whether sections 266 to 275 of the Penal Code create offences separate from the one created under section 265 of the Penal Code it held that: “section 266 to 275 of the Penal Code does not declare any offence distinct and separate from that declared under section 265 but only set out the various circumstance of the offence of theft and nature of things stolen according to which special penalties are imposed for the same offence”. Further, the requirement to cite the specific provision of the law creating an offence and its punishment in a charge sheet was found to be very crucial in the case of Mussa Nuru @Saguti vs. R, Criminal Appeal No. 66 of 2017, CAT at Tanga (unreported) where the CAT stated that: 7 “We think indicating the offence and its punishment in the charge is very crucial. We say so because, in the first place, it lays the foundation of criminal proceedings. Secondly, is to comply with the requirements of section 132 (1) of the Penal Code and 135 9a) (ii) of the CPA. Thirdly, and more

significantly, to enable the accused understand the nature of the offence and its seriousness”. I therefore find the appellant was charged and convicted under a defective charge. Therefore, his plea was equivocal as the charge was defective and the appellant could not understand the nature of the offence and its seriousness. Consequently, I allow the appeal, quash and set aside the conviction and sentence and order the immediate release of the appellant from prison unless held for another lawful cause. I make no order as to costs, as neither party made such prayer. It is so ordered. Right of appeal explained. DATED at MBEYA on this 14 day of February 2025. 8 A. A. SINDA

JUDGE 9