CRIM APP NO 182 OF 2022 JOHN BRUNO KIMARIO VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA' AT MOSHI fCORAM: MWANDAMBO, 3.A., KIHWELO, 3.A. And MGEYEKWA, 3.A.^ CRIMINAL APPEAL NO. 182 OF 2022 JOHN BRUNO KIM ARIO ..................................................................... APPELLANT VERSUS THE REPUBLIC................................................................................RESPONDENT (Appeal from the Decision of the Court of Resident Magistrate of Moshi at Moshi) (Lusewa, PRM Ext. Jurl dated the 15th day of October, 2021 in Criminal Appeal No. 4 of 2021 JUDGMENT OF THE COURT 12th & 18th March, 2025 KIHWELO, 3.A.: The appellant, John Bruno Kimario was charged before the District Court of Rombo at Rombo for the offence of stealing by agent contrary to section 273 (b) of the Penal Code, Cap. 16 (the Code). The charge that was laid before the court run as follows: i i "STA TENENT OF THE OFFENCE Stealing by Agent contrary to section 273 (b) o f the Penai Code, [Cap. 16, Vol. 1 o f the Laws R.E. 2002] PARTICULARS OF THE OFFENCE JOHN BRUNO KIMARIO on 24h December 2019 at about 11:00 hrs at Tarakea bus stand area within Rombo District in Kilimanjaro Region did steal cash money Tshs. 10,000,000/= which was entrusted to him by BARAKA SEBASTIAN MSIGALLA for currency exchanging purposes instead he used the said money for his own purposes. " The appellant protested his innocence, following which a full trial ensued and the prosecution featured six (6) witnesses and two exhibits. To establish its case, the following witnesses gave testimony: Baraka Sebastian Msigala (PW1), Ramadhani Andrea Mwiko (PW2), Sabina Roman Assenga (PW3), Karimu Maulid Swai (PW4), Yusuph Antony Mkenda (PW5) and police No. F. 7283 D/CPL Mzigo (PW6). Apart from that, the prosecution tendered in evidence the Tax Identification Number (exhibit D l) and the Identification Card for petty traders (exhibit D2). 2 On the part of the appellant, he gave his testimony on oath and, in addition he called two other witnesses to protest his innocence. He further tendered in court a Police Form Number 3 (PF. 3) which was admitted in evidence as exhibit PI as well as torn and bloodstained shirt and trouser which were admitted in evidence collectively as exhibit P2. The brief background to this appeal is best told by the version of the six prosecution witnesses who testified before the trial court and were believed to be credible and reliable witnesses by the two courts below. It was alleged that the appellant on 24th December 2019 while at Tarakea Bus Stand which was his usual place of business was entrusted by PW1 with Tanzanian Shillings Ten Million (TZS. 10,000,000.00) in order to purchase Kenyan Shillings as the appellant was conducting what appears to be black market currency exchange business, while PW1 was a petty trader dealing in selling vegetables from Tanzania and Kenya. The duo was said to be familiar to each other and have had previous dealings of the same nature. It occurred that, PW1 gave money to the appellant in two installments of Tanzanian Shillings Six Million (TZS. 6,000,000.00) and Tanzania Shillings Four Million (TZS. 4,000,000.00) in two different 3 occasions in the presence of PW2 and PW3 for the first instalment and PW5 for the second instalment. It was further alleged that the appellant did not heed to what they had agreed with PW1 to purchase Kenyan Shillings and totally denied to have been given money by PW1 or at all, which infuriated the appellant and a fight ensued at the Rombo Bus Stand which attracted people around that area and later the police. Despite PW l's repeated demands for refund of his money the appellant adamantly denied to have taken any money from him. Owing to the chaos that the duo caused at Tarakea Bus Stand, police officers had to intervene and the duo was taken to the police. Later on, PW1 made a formal complaint and the case resulting into this appeal was instituted and the rest is now history. During trial, all the prosecution's witnesses supported the version that the appellant was entrusted with the stated amount of money which he converted for his own use. On the adversary side, the appellant gallantly denied the accusations levelled against him and stoutly defended his innocence. In his sworn testimony, the appellant testified that the entire strife between him and PW1 arose when on the fateful day he approached PW1 on allegations that the latter sent inappropriate text messages to someone's wife and when that person complained before the police he was turned down. In a surprising turn of events, PW1 threatened to shoot the appellant with his pistol right on his head which compelled the appellant to rush to the police to report that incident but quite surprisingly the police turned him away and as he was about to leave the police station, PW1 emerged with two other people and they instantly started to beat the appellant while demanding for refund of the money that he was allegedly given, and fortunately, other people came to the appellant's rescue and the duo was taken to the police station but to the appellant's surprise, only him was kept in custody while PW1 was left scot-free and later the appellant was taken to court for the impugned case. As alluded before, the appellant called two witnesses both of whom defended the appellant's innocence. The trial court accepted as truthful the evidence of the prosecution to the effect that the appellant's denial was rejected. In the upshot, the appellant was found guilty of the offence of stealing by agent and was accordingly convicted. He was sentenced to serve two years imprisonment. In addition to that the appellant was ordered to return Tanzanian Shillings Ten Million (TZS. 10,000.000.00) he took from PW1. 5 In trying further to defend his innocence, the appellant lodged his first appeal before the High Court which transferred it to the Court of Resident Magistrate of Moshi at Moshi (the first appellate court) and was assigned to Lusewa, PRM with Extended Jurisdiction who found no valid cause to fault the findings of the trial court and, accordingly dismissed the appeal. Undeterred, the appellant lodged this second appeal. The appellant's dissatisfaction with the decision of the first appellate court is expressed in a memorandum of appeal comprising five grounds of grievance which were earlier on lodged in Court on 6th December, 2021. Nonetheless, for a reason that will shortly become apparent, we think that it will be unnecessary for us to reproduce the five grounds of grievance raised by the appellant. Before us, the appellant appeared in person unrepresented, while Messrs Isack Mangunu, Peter Utafu, Kambarage Samson and Ms. Edith Msenga all learned State Attorneys appeared for the respondent Republic. As we were about to begin hearing of the appeal, we prompted the parties to address us on the propriety of the charge which was preferred against the appellant in this case and which was the basis of his conviction. 6 Mr. Mangunu readily conceded that the charge at page 1 of the record of appeal was defective in that the provision cited is section 273 (b) of the Code which however, do not create an offence and therefore, the prosecution was required to cite section 258 (1) of the Code, apart from section 273 (b) of the Code which was cited. He took the view that, since a charge is what institutes a criminal case before a court of law, in the circumstances, the court was not competent to try the appellant and therefore the trial was a nullity. Because the trial was nullity then automatically the appeal which arose from nullity proceedings was equally a nullity, the learned State Attorney argued. He thus implored on us to invoke section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the Act) and nullify the proceedings and judgments of both the lower court and the first appellate court. Understandably, there was nothing useful from the appellant, apart from maintaining his innocence and reiterating that the case was totally fabricated against him. On our prompting, he informed us that he had already finished serving his prison term but was yet to comply with the order of returning the Tanzanian Shillings Ten Million (TZS. 10,000.000.00) 7 to the appellant because he did not take that money, but also, he is unable to pay. We fully agree with Mr. Mangunu that the provisions of section 273 (b) of the Code which was cited by the prosecution as the charging section do not create the offence of stealing as such the court was not competent to try the appellant. That makes the trial and the subsequent appeal a nullity. Section 273 (b) of the Code, provides that: "Where the thing stolen is any o f the following things, that is to say- (a) N/A (b) property which has been entrusted to the offender either atone or jointly with any other person for him to retain in safe custody or to apply, pay or deliver it or any part o f it or any of its proceeds for any purpose or to any person." Clearly, looking at the above provisions cited by the prosecution in the case before us, it does not create an offence of stealing but rather it merely describes the circumstances under which stealing by an agent is said to occur and the corresponding sentence to the offender. Our reading and understanding of section 273 (b) of the Code as it is, it cannot stand alone as a charging section for the reason that it does not contain the essential elements for an offence of stealing to occur. For any offence of stealing to stand section 258 (1) of the Code has to be cited. Section 258 (1) of the Code provides as follows: "A person who fraudulently and without claim o f right takes anything capable o f being stolen, or fraudulently converts to the use o f any person other than the general or special owner thereof anything capable o f being stolen>steals that thing. (2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any o f the following intents, that is to say- (a) an intent permanently to deprive the general or special owner o f the thing o f i t " Theft is covered under Chapter XXVII of the Code from section 257 to section 275 in which the first provision is section 257 which defines which things are capable of being stolen and the next provision is section 258 which defines theft and the necessary elements that needs to exist for theft to occur. Therefore, the component of stealing or theft is an integral part of 9 the offence of stealing by an agent as it has all the elements of the offence of stealing and therefore, in order to establish that offence in the first place the prosecution was duty bound to cite section 258 (1) of the Code which creates that offence of stealing. In the absence of that, the charge cannot stand. We hasten to state at this point that, since the prosecution cited section 273 (b) of the Code alone leaving behind section 258 (1) of the Code the charge against the appellant was improper and therefore, it could not lead to the impugned conviction and sentence. In the event, we hold that, the trial court was not competent to try and convict the appellant and therefore, the trial was a nullity and hence the appeal which arose from nullity proceedings was equally a nullity. We are satisfied that in the interest of justice, the proceedings and subsequent judgments of the two courts below should not be left to stand. Accordingly, we invoke our revisional powers under section 4(2) of the Act on the basis of which we nullify the proceedings and judgments of the two courts below, quash the conviction and set aside the sentence as well as the order to return Tanzanian Shillings Ten Million (TZS. 10,000,000.00) to PW1. 10 The appeal is, in the event allowed albeit on a ground outside the memorandum of appeal. DATED at MOSHI this 18th day of March, 2025. L. I S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 18th day of March, 2025 in the presence of the Appellant in person and Ms. Bertina Tarimo, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. li