20140609 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA

AT MBEYA DC. CRIMINAL APPEAL NO. 28 OF 2010 (From The District Court of Mbeya at Mbeya Criminal Case No. 94 of 2011) IVI 0 SES S/0 SIIC..Al'J"i'IIC.. .........................................APPELLANT

VERSUS THE REPUBLIC ....................................................... RESPO!JnIENhIs 06/06/20 14 & 09/06/20 14

JUDGMENT A. F.NGWALA, J. In this case the Appellant was charged with and convicted of Stealing Contrary to Section 265 of the Penal Code, (CAP 16 R.E. 2002). The learned trial Resident Magistrate concluded her Judgment by stating that "In the end result this court finds the accused guilty as charged". On this, it is considered, she was wrong. The learned state Attorney who represented the Republic. Ms. M. Lundu, at the 1st day of the hearing of this Appeal, raised this Preliminary Objection on Point of Law, that there was no conviction in the Judgment of the trial court. Ms Lundu submitted that after the trial Magistrate had entered the above quoted sentence he proceeded to sentence the accused. This was contrary to the provisions of Section 235 of the Criminal Procedure Act (CAP 20 R.E. 2002). 1 For this reason the learned State Attorney prayed for an order to remit the trial record in the lower tribunal with a direction that a conviction Should be entered, so that the judgment can have a leg to stand on Appeal. The Appellant on his part, had submitted that this error or wrong was caused by the court, specifically the trial Magistrate who did so. The Appellant is not in favour of the prayer by the learned State Attorney to quash and set aside the judgment of the trial court and the sentence of imprisonment and remit the record of the trial court to compose a proper judgment by

entering a conviction and sentence the Appellant accordingly. The point taken by the learned State Attorney is valid. It is clear that the mandatory statutory requirements of Section 235 (1) of the Criminal Procedure Act, CAP. 20 R.E 2002 which imposes a duty on the trial court to enter conviction before embarking on the question of sentence were not complied with. In the present case no conviction was entered as aforesaid. For the said reason, in terms of Section 235 (1) of the Criminal Procedure Act, there is no valid Judgment upon which this court, (the High Court) can uphold or dismiss the Appeal. In the circumstances following the decisions of the Court of Appeal of Tanzania in Crimiriall Appeal No. 145/2005 between Matola Kajuni and two other Vrs Republic and Hassan M wambanga Vrs. Republic Criminal Appeal No. 40 of 2013 which I have been referred to by the learned State Attorney, I do hereby invoke the Revisional 2 -I Powers of this court, remit the record of the trial court for it to compose a proper judgment by only entering a conviction and sentence the Appellant accordingly. In the best interest of justice, I direct that the prison sentence should begin to run from the day of the initial incarceration, that is, from 15th October 2012. For the said •reason the Appellant should remain detained in custody until the date when he shall be lawfully released from custody. Qr.d accordingly. 2:/ C/ • . / '.4. A F i6tAL A \\ JUDGE 09/06/2014 3 if Date: 09/06/2014 Coram: Hon. A.F. Ngwala, J. Appellant: - Present For the Republic - Ms Hellen C/C Gibson COURT: Judgment delivered in the presence of the Appellant and Ms Hellen who is representing the Republic. Y:f4 ~ A.F. NWALA

JUDGE 09/06/20 14 COURT: Right of Appeal to the Court of Appeal of Tanzania Explained. ML A.F. NGWALA

JUDGE 09/06/20 14 4