SHEKALAGHE NKINDA final from

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 187 OF 2023 (Arising from Criminal case No 122/2021 at Kisutu Resident Magistrate's Court) MAKALAGHE SHEKALAGHE NKINDA……………………………. APPELLANT VERSUS REPUBLIC…………………………………………………..…………RESPONDENT JUDGMENT 13th & 28th November,2024 MWANGA, J. This matter has an odd history, discerned from the record, it appeared that one Suleman Mohamed died on 13th January 2020; he left behind five children and two wives as the third wife had already passed away. On 04/06/2020, three administrators of the deceased were appointed by Sinza Primary Court, accused being among them. On 11/07/2020, the administrators received a call from NMB explaining that there was a problem in the deceased’s account, as there had been a withdrawal of money, and the report showed that Tsh.198,759,000 had been withdrawn after the deceased's death. The money was withdrawn from ATM points and NMB agents. According to the record, the appellant 1 had the deceased ATM card. The accused admitted to having to withdraw the money from the said account, and she was even ready for negotiation. Since the probate case was not yet closed, and one of the administrators was a suspect, Criminal case No. 122 of 2021 was opened, where the appellant was arraigned at the Resident Magistrates Court of Dar es Salaam at Kisutu for an offense of stealing c/s 258 and 265 of the Penal Code [Cap 16 R.E 2019] now R.E 2022, where it was alleged that, on diverse dates between January 2020, June 2020 at various places within the city and Region of Dar es Salaam and other regions within the United Republic of Tanzania, the appellant did steal total amount of money Tsh. 198,759,000 from NMB account No. 70202402932, the property of the deceased Suleiman Mohamed. When called to answer the charge against him, the appellant flatly denied the accusations, thus making the prosecution procure four (4) witnesses in a bid to prove its case and tendered three (3) exhibits, while the defense had 3 witnesses, including the accused himself and tendered 7 exhibits. After a full trial, the trial court was satisfied that the prosecution case was proved against the accused beyond a reasonable doubt. The accused was convicted of an offence of theft and sentenced to pay a fine of Tsh. 7,000,000 and, in default, serve one-year imprisonment. 2 Additionally, it was ordered that the appellant’s house situated at Morogoro be part of the probate in compensating what was lost in the estate of the late Suleiman Mohamed. Discontented and protesting her innocence against conviction and sentence meted on her, the appellant has come to this Court armed with five (5) grounds of appeal, which can be summarized as follows; 1. The trial court magistrate erred in law and fact in convicting and sentencing the appellant, who was charged with a defective charge sheet. 2. The trial court magistrate erred in law and fact in convicting and sentencing the appellant based on undetermined issues about a pending probate case. 3. The trial court magistrate erred in law and fact in convicting and sentencing the appellant without considering the weight of evidence adduced for the defense side. 4. That the trial court magistrate erred in law and facts to convict and sentence the appellant while the prosecution failed to prove the offense beyond reasonable doubt against the appellant. 3 5. That the trial court magistrate erred in law and facts by imposing an excessive sentence and failed to consider the strength of mitigation factors adduced by the appellant. On the strength of those grounds, he implores the court to allow the appeal, Conviction, sentence, and orders made to it be quashed and set aside. Disposal of the appeal took the form of written submission, in which the appellant had a representation of Mr. Ebenezer Senkoro, learned advocate. In contrast, the Respondent had a representation of Phoibe Maghiri SA. In his submission, Mr. Senkoro prayed to submit his grounds in seriatim. On the first grounds of appeal, Mr. Senkoro submitted that the charge against the appellant indicated that the appellant stole an amount of money, which is the property of a deceased one, Suleiman Mohamed. He said the named deceased was the appellant's husband until his death. Thus, it is settled law under section 264 of The Penal Code [CAP. 16] RE 2022, that a husband may be guilty of stealing from his wife or a wife from her husband." He contended that the charge is improper under the current matter since the late husband could not become a victim of the said stolen amount of money. Also, the sections cited establishing the offense charged there are too general, which is prohibited by the law. According 4 to him, the charge against the appellant was referred to as an offense committed contrary to sections 258 and 265 of the Penal Code Cap 16 R.E 2019; the appellant was required to know the meaning of the offense charged with. In his view, failure to cite sub-section (1) of section 258, which is a specific provision that gives the meaning of the offense of stealing, led the appellant not to know the meaning of the offense charged; thus, she was not in an excellent position to prepare her defense. He was insistent that the omission to state provision providing the meaning of the offense prejudiced the appellant, who was not made aware of the severe implications of the offense charged; thus, she could not make an informed defense. To bolster his position, he cited the case of Godfrey Simon and Another vs. Republic, Criminal Appeal No. 296 of 2018 Cat (unreported), where the court emphasized the effect of failure to cite the section creating the offense and, therefore, proceeded to hold the proceeding and judgment to be a nullity. He went on to clarify that omission to cite the proper provision creating the offense may be remedied before the conclusion of the trial if the prosecution had sought leave of the court to amend the charge in terms of section 234(1) of the CPA. He took the view that since the charge 5 was not amended, it remained defective, thus vitiating the trial proceedings and rendering judgment null. In response to the first ground, it was submitted by Ms. Maghiri that, for there to be a defective charge on the omission of the subsection, such omission must be fatal and has to occasion a failure of justice to the Defendant. She concedes that the subsection was omitted from the statement of the offense in the charge but contended that such omission was not fatal and did not prejudice the Appellant. She further stated that Section 258 of CAP 16 provides for the offense of theft. However, the subsection was omitted from the statement of offense; the same was correctly adduced in the particular offense in the charge, which was read to the Appellant, who understood it and entered a plea of not guilty. The learned state attorney referred the court to section 388 of the Criminal Procedure Code. She was insistent that the omission of Subsection 1 of Section 258 of Cap 16 did not cause the miscarriage of justice for the Appellant. She submitted that the first ground had no merit, and the trial Court Magistrate was correct to convict and sentence the Appellant with the charge. It was his prayer that the ground be dismissed. In a short rejoinder, the appellant reiterated her submission in chief. I have canvassed parties’ submissions about this ground and the lower court record, which I have scrutinized. Notably, the charge is the 6 foundation of any trial, and it is a cornerstone of any criminal trial; it has the role of informing the accused person on the nature of his/her accusation and allowing him/her to prepare his defense; thus, the charge is the essential document in any criminal trial. Therefore, if the charge is defective and no amendment is made, then the charge remains unproved, and the accused shall be entitled to an acquittal. See the case of Bainth and Another vs Republic, Criminal Appeal No. 339 OF 2013 (Unreported). However, as rightly submitted by the respondent’s counsel in the present appeal, though section 258 was cited without its subsections, the accused person understood the charge and particulars of the offense; thus, she knew the nature of the offense facing her and the punishment for that offense as section 265 of the penal code was also cited. Secondly, the accused was not prejudiced in any way as provided for in the case of Elibariki Naftal Mchomvu vs Republic (Criminal Appeal 332 of 2019) (2022) TZCA 606 October 20222 (tanzlii), which cited the case of R v. ngidipe Bin Kapirama & Others (1939) EACA 118, where it was held that, "An illegality in the form of a charge or information may be cured as long as the accused persons are not prejudiced or embarrassed in their defense or there has not 7 otherwise been a failure of justice." Further, in the case of Jamali Ally vs. @ Salum vs. Republic Criminal Appeal No. 52 of 2017 (unreported), it was held that …we are prepared to conclude that the irregularities over non-citations of applicable provisions in the statement of the offense are curable under section 388 of the CPA. In the present case, the appellant was not prejudiced in any way, and she gave a defense which shows that she was well informed of the charge facing her. Thus, the allegation that the appellant was prejudiced because she was not made aware of the serious implications of the offense charged and, hence, could not make an informed defense is unfounded. Therefore, this ground is dismissed. On the second ground of appeal, the appellant contends that the trial court magistrate erred in law and facts to convict and sentence the appellant based on undetermined issues about a pending probate case to wit Mirathi No. 53/2020 at Sinza Primary Court. To him, the Primary Court was the competent court to hear and determine all the issues that arose from the deceased's estate. Thus, the trial magistrate assumed jurisdiction, which was never vested in him, to interfere with the probate dispute while the probate case was still pending at the said primary court of Sinza. He argued that exhibit D6 was an objection letter that was 8 admitted without objection; it was a letter challenging the legality of the said probate case, which is still pending. Responding to the second ground of appeal, the Respondent's counsel submitted that the case in the subordinate court was a criminal case different from the case of Sinza Primary Court concerning probate issues, and, therefore, the trial court did not interfere with the dispute. Secondly, the evidence adduced by the Respondent witness PW1, which was letters of Administration Exhibit P1, indicated that the primary Court had already decided the matter; hence, the Administrators, among others being the Appellant, was granted so that he could deal with the deceased assets. According to her, such evidence was good enough to allow the trial Court Magistrate to give judgment and sentence the Appellant; thus, the trial court magistrate did not assume jurisdiction in determining the criminal case against the appellant. On the basis of the above arguments, the Respondent submits that the Trial Court Magistrate did not assume jurisdiction in convicting and sentencing the Appellant, and she prays that the ground be dismissed. Rejoining this point, Mr. Senkoro contended that Exhibit P1, tendered, suffices to prove that the trial court assumed jurisdiction, which Is not vested with, as the primary court in probate cases is governed by the probate laws. He cited Rule 9 (2) (c) of The Primary Courts 9 (Administration of Estates) Rules G.N. No. 49 of 1971, which provides; “the court may order the person acting as administrator to pay such compensation for the loss or damage caused to the estate or any interest therein by his willful acts or negligence as the court may determine." He believed that in probate cases where there are any claims/complaints against the administrator, the court has to hear the claims if proven to proceed with revocation and to make orders as per the rules. Also, the administrator has their sureties who sign a bond twice the value of the estate, and in case of any misuse, the court can make any orders after hearing the complaint. Hence, the trial court magistrate assumed jurisdiction, which was never vested to him, to hear and determine issues arising from a pending probate cause. He was insistent that, since the case originated from the pending probate case, and since the appellant is the administratrix therefore, the claimant/victims should make an application for revocation and pray other remedies as provided under Rule 9 of The Primary Courts (Administration of Estates) Rules G.N. No. 49 of 1971 and not to institute criminal charge. I have examined the contending submission by the parties in light of this ground with the weight it deserves and the lower Court records I have inquisitively perused. It is my conviction that the ground need not 10 detain me. It is an undisputed fact that the appellant was prosecuted for theft. As rightly submitted by the respondent’s counsel, probate court does not deal with theft, as stealing is a criminal matter, not a probate matter. Thus, the allegations that the trial magistrate assumed jurisdiction are baseless. Likewise, an assertion that the probate matter was still pending is unfounded as the same does not exonerate the appellant from the offense of stealing. Thus, this ground is bound to fail, and I hereby dismiss it. Regarding the third ground of appeal, the appellant contends that the trial court did not consider the weight of evidence adduced by the defense side. According to him, the evidence adduced by the appellant was strong that she had made a sufficient contribution towards the said money, which is purported to have been stolen. He went on to submit that, to prove his contribution towards the acquisition of the money that is purported to be stolen, several exhibits were tendered with no objection to wit exhibit DI, which was a purchase contract for a coaster car attached with a bank slip with the same account appeared in the charge, exhibit D2 collectively was also admitted with no objection, exhibit D3 collectively were two counter books which indicated cars routes and day to day transaction as to income and expenditure which had contained both handwritings of the deceased husband and the appellant which was also 11 admitted without any objection, also exhibits D4 collectively and D5 collectively supporting the joint efforts in business towards the acquisition of said stolen money from the said NMB account. Mr. Senkoro contended further that the evidence adduced by DW2, sister of the deceased, indicates that the deceased left one widow (the appellant) with no child and their family decided to let the appellant manage herself, and that the evidence of DW3, who was Ustadhi of Masjid Madina Munawal in Lindi Municipality testified that he knew the deceased and appellant as a fellow in the Islamic faith for more than 10 years and that as a widow has a right under Islamic faith to use funds of her late husband. To him, that proves that the defense side holds water to justify the innocence of the appellant, who has been the victim of the circumstances surrounding the whole matter. He implored the court, the first appellate court, which has a statutory duty to look at and re-evaluate all the evidence recorded by the trial court before concluding. He cited the case of Martha Michael Wejja Vs. to support his stance. Hon. Attorney General And 3 Others [1982] TLR 35 to support his stance. In response, it was the respondents’ submission that giving evidence allows and assists the court in making a fair decision by proving or disapproving the facts in dispute. To her, the duty of the Appellant was 12 only to raise doubt in the Trial Court by providing evidence to exonerate her from the accusation of theft. In further view of Ms. Maghiri, the evidence provided by the Appellant was not enough to persuade the Trial Court Magistrate to forgive her from liability. She was insistent that, as the record shows, all the tendered evidence and testimony the appellant gave were insufficient to raise doubt about the prosecution evidence to enable the trial Court Magistrate to exonerate her from liability. It was her submission, therefore, that the trial Court Magistrate considered all the evidence adduced before him and correctly convicted and sentenced the Appellant. I have examined the contending submission by the parties in light of this ground with the weight it deserves. It is an undisputed fact that the appellant is the deceased’s wife and that she tendered a marriage certificate during trial to prove the same. Further, during the trial, the appellant tried to impress the court that she contributed to the deceased accounts; thus, it was right to draw money from the deceased’s account. I profoundly believe the appellant was an executor in her wrong. It should be noted that the account in which the appellant withdrew money was the deceased account, not the appellant's joint account. Even if the appellant was withdrawing money during the deceased's life, the moment the account owner died, she had to stop that practice and proceed with 13 probate matters. Undisputedly, stealing means taking another person’s property without consent and for your use. Since the appellant was withdrawing money from the deceased account for her use without permission, that is theft. The appellant cannot rely on contribution or her efforts under the circumstances as this is not a matrimonial matter but a criminal case. Having said so, this ground is also baseless, and I therefore dismiss it. Regarding the fourth ground of appeal, the appellant contends that the case was not proved to the hilt. In this, Mr. Senkoro submitted that criminal offense must be proved beyond a reasonable doubt, and since the appellant was charged with the offense of stealing, Contrary to sections 258 and 265 of the Penal Code [Cap 16 RE 2019], the said offense has its elements which for the said offense to stand all elements should be proved. To cement his position, he cited the case of the Director of Public Prosecutions vs. Shishir Shyamsingh, Criminal Appeal No. 141 of 2021 CAT (unreported). He was insistent that, as per Section 3(2)(a) of Evidence Act Cap.6 R.E 2019 and the case of Fakihi Ismail v. The Republic, Criminal Appeal No. 146 "B" of 2019(unreported), the burden of proof lies on the prosecution and the standard is beyond a reasonable doubt. Therefore, It was his submission that to prove the offense of stealing, the prosecution must show that all 14 the elements/ ingredients of the offense are established. Responding to this ground of appeal, Ms. Maghiri Submitted that the first element of theft is that there must be movable property. The stolen money in the present case was put correctly into the NMB Account with No 70202402932. The respondent proved this element through the testimony of both PW1 and PW2. Concerning the second element, she submitted that, as per the testimony of PW1, PW2 and the DW1 accused herself that the owner of the NMB Account mentioned above was the deceased, the late Selemam Utanga; thus, it is without doubt that the testimony given proved the element of ownership of the movable property. Concerning the third element, which is the intention and actual move and take the movable property by another or the accused, it was his submission that the Respondent proved this element through the evidence tendered by PW3, the bank statement marked exhibit P2, also the testimony of PW1 and PW2 show that the Appellant intentionally withdrew money from the NMB Account not owned by her but by the deceased. About the fourth element, it was submitted that consent is required to exonerate someone from theft liability. To her, in the present case, it was proved beyond a reasonable doubt because the withdrawal of money by the Appellant lacked consent from responsible parties, who were the fellow administrators appointed 15 by the Primary Court, as it was testified by PW1 who tendered a letter of Administration exhibit P1 showing there were given the power to deal with a deceased estate. She thus submitted that withdrawing the money without giving notice to the other administrators amounted to the offense of theft. Hence, the element was proven. Concerning the last element, he submitted that there must be a loss to another. It was their submission that the deceased person had five children he left behind and other relatives who were beneficiaries of the deceased estate; thus, the act of the Appellant to steal the money amounted to TZS 198,759.00/= detriment the beneficiaries from enjoying the estate of their late father, hence suffer loss. It is the respondent's submission, therefore, that the case against the appellant was proved beyond reasonable doubt as the law required. Thus, the trial Court Magistrate correctly convicted and sentenced the Appellant. Having canvassed parties’ submission regarding this ground, I wish to tackle this ground under the guidance of the decision from the case of Director of Public Prosecutions vs. Shishir Shyamsingh, Criminal Appeal No. 141 of 2021 Cat (unreported), where it was stated that; "it is settled law that for the offense of stealing to be established, the prosecution should prove that; 16 one, there was movable property; two, the movable property under discussion is in possession of a person other than the accused; three, there was an intention to move and take that movable property; four, the accused moved and took out the possession of the possessor; five, the accused did it dishonestly to himself or wrongful gain to himself or wrongful loss to another; and six, the property was moved and took out without the consent from the possessor.” Applying the above authority in the fact of the present case, it is apparent that, all the ingredients of theft were proved as the prosecution managed to confirm that the appellant withdrew money from NMB Account No. 70202402932, the property of the deceased Suleiman Mohamed and that she did the same dishonestly for her gain. The act was done without the deceased’s consent. For those reasons, I am convinced that the case against the appellant was proved beyond reasonable doubt. Lastly is the 5th ground, in which the appellant contends that the trial court magistrate imposed an excessive sentence and failed to consider the strength of mitigation factors adduced by the appellant. He said the fine of 7 million was excessive for the appellant, who has been a widow since 2020 and sick, but also the responsibility and liability she had as indicated in mitigation factors. In his view, the court should reduce the 17 said fine or waive it to ease the financial burden on the appellant. From the above submission, it was his prayer that this appeal be allowed by quashing the conviction, sentence, and orders made to it. In rebuttal, it was argued that the Punishment for the offense of theft as per Section 265 of Cap 16 R.E 2019 is imprisonment for seven years; however, during the sentencing process, the Appellant's advocate prays before the Trial Court Magistrate to give a lenient punishment to the Appellant as she was the first offender, despite the Respondent asking for severe punishment, the Trial Court Magistrate still gave a lenient sentence to the Appellant which was to pay a fine of TZS. 7,000,000/= or 1-year imprisonment if the Appellant failed to pay the fine. The Respondent submitted that the trial Court Magistrate considered the mitigation factors and gave a lenient punishment to the Appellant. It was their prayer, therefore, that this Appeal be Dismissed. I have dispassionately considered the party's submissions; the appellant laments that the trial court imposed an excessive fine on Tsh. 7,000,000. Nevertheless, before addressing this ground, I wish to quote the provision of section 265 of the penal code, which provides punishment for theft.The same states that: “Any person who steals anything capable of being stolen is guilty of theft and is liable unless owing to the 18 circumstances of the theft or the nature of the thing stolen; some other punishment is provided, to imprisonment for seven years.” My understanding of this section is that, the same is a discretionary sentence; thus, the courts may sentence the convict for up to this period. In other words, the sentence can range from absolute discharge to seven years, the maximum sentence the law provides. Looking at the wording of that section, the same does not give an alternative punishment of a fine but a maximum sentence of seven years imprisonment. It is a settled position of law that a court cannot impose a fine sentence unless such sentence is provided under the relevant section. This sound principle was elucidated in the case of Chande Zuberi Ngayaga & Another vs Republic, Criminal Appeal No. 258 of 2020 CAT, and Robert Rwanda Nyadenda vs Godfrey Binaisa, Pc Criminal Appeal No. 4 of 2022 HC at Musoma. Guided by the above authority, it is apparent that the trial magistrate erred in imposing a fine on the appellant contrary to the law. Thus, being the first appellate court, I invoke my revisional powers and set aside the sentence of fine in the sum of TZS 7,000,000 and substitute it for imprisonment of one year with effect from the date she was found guilty and sentenced by the trial court. 19 Before I pen off, I wish to comment on the order of the trial court that the appellant’s house be included in the deceased estate. This order is misplaced; the trial magistrate had to order the appellant to return the amount she withdrew from the deceased account. Whether the house should be included as compensation is the executing court's duty. Therefore, I ordered the appellant to return the amount of TZS. 198,000,000, which she withdrew from the deceased account. I uphold the appellant's conviction, and except for the sentence adjustment, the appeal is dismissed. It is so ordered. MWANGA, J. JUDGE 28/11/2024 COURT: Judgment delivered at Dar es Salaam this 28th November 2024 in the presence of Ebenezer Senkoro, counsel for the appellant, and Phoibe Magiri, State Attorney for the Respondent. MWANGA, J. 20 JUDGE 28/11/2024 21