malegesi so mtobesha vs republic 2008 tzhc 103 17 august 2008

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA HIGH COURT CRIMINAL APPEAL N0.62 OF2007 IN THE DISTRICT COURT OF UKEREWE ORIGINAL CRIMINAL CASE N0.58 OF 2003 MALEGESI S/O MTOBESHA.......... APPELLANT Versus THE REPUBLIC..........................RESPONDENT JUDGMENT 17/9/2008 (9.00Am) & 17/9/2008 fl230Noon) NYANGARIKA, J. The appellant appeared in the District Court of Ukelewe at Nansio charged with and convicted of rape contrary to Section 130 (2)(e) o f the Penal Code as am ended by section 5 o f the Sexual offence [special provisions] A ct No. 4 o f 1998, on his own plea of Guilty. Dissatisfied with the conviction of his own plea of Guilty and Sentence, the appellant preferred the present appeal to this Court. When this appeal came up for hearing Mr. Matuma Athumani, learned State Attorney did not support both conviction and sentence on the ground that the facts recorded after a plea of Guilty do not support the offence as charged. The learned State Attorney request this Court to exercise its powers conferred under section 366 (1) (a) (i) o f the Crim inal Procedure Act, [cap. 20 R .E 2002]and make an order that the appellant be retried before a Court of competent jurisdiction. He cited the case of Laurence Mpingu v. Republic [1983] 166 to support this argument. The appellant himself supported what the learned State Attorney had submitted in this appeal. After hearing the submission of both the State Attorney and the appellant, I revisited the Court record, the grounds of appeal, studied the trial Court Proceedings and judgment being appealed against, and I have discovered that the appeal before me is not proper. There is no notice of intention to appeal filed within 10 days after delivery of the judgment as required under the provision of section 361 (1)(a) o f the Crim inal Court A t [cap. 20 R.E. 2002. The decision of the trial Court was delivered on 13.2.2004 and the appellant was supposed to file his notice of intention to appeal within 10 days after delivery of the decision, and that is on or before 23.2.2004. The record of the trial Court also show that the judgment was typed and certified on 23.2.2007. The memorandum of Appeal in this Court was filed on 2.4.2007, that is within the prescribed period required under section 361 (1) (b) o f the Crim inal Procedure A ct [cap. 20 R .E 2002]. However the record of the trial Court does not show whether the appellant wrote a letter applying to be supplied with copies of judgment and proceedings for appeal purposes. Filing a notice of intention to appeal under section 361 (l)(a ) o f Crim inal Procedure A ct [cap. 20 R .E 2002] is mandatory [see the case o f D.P.P. versus A. M. Sw ai[1989] TLR 37 (HC). Therefore the appeal is not properly before me for want of a notice of intention to appeal as envisaged under section 361 (l)(a ) o f the Crim inal Procedure A ct 1985[cap. 20 R .E 2002]. I therefore dismiss the appeal as filed by the appellant. However, having carefully gone through the evidence on record and considered the same, I have reached a settled view that I must exercise my revisionary Powers under Section 373 (l)(a ) o f the Crim inal Procedure Act, [cap. 20 R.E. 2002] for the interest of justice as the record of the trial Court is now before me. Indeed as rightly pointed out by the learned State Attorney, there was nothing said in the facts given by the Public Prosecutor before the trial Court which suggested that the appellant committed the offence as charged apart from bare assertion that the appellant took and stayed with, one Pracseda d/o Thomas in a house of Bunjaji s/o Wanjara from 23.10.2003 to 27.10.2003 when they were arrested and taken to Nansio Police Station, where the appellant was thereafter charged with the present offence. A conviction may properly be entered against the appellant if the facts given by the prosecution fully discloses the offence as charged. [See the case of Sebastian Mpaka v. R epublic[1975] LRT NO. 28 and, BuhimHa Mapembe v. Republic [1988] TLR 174 at page 175. In the present case, the facts given by the Public Prosecutor before the trial Court cannot reasonably be said to amount to a full disclosure of the ingredients or elements of the offence charged. The facts appear to me to have amounted to an allegation that the appellant was only arrested while in the company with one Paracseda d/o Thomas from 23.10.2003 to 27.10.2003. In the case Keneth Manda v. Repub!ic[1993] TLR 107 it was held, interalia, that an accused person can only be convicted on his own plea of guilty if it is ascertained that he has accepted as correct facts which constitute the ingredients of the offence charged. As already said, no particulars or facts constituting the offence of rape were put to the appellant before he was convicted and sentenced. Therefore in exercise of my powers conferred under Section 3 73 (l)(a) o f the Crim inal Procedure A ct [cap. 20 R .E 2002] I hereby quash all the Proceeding of the trial Court, set aside the conviction and sentence of the appellant, and instead order that the appellant be retried by another Magistrate with competent jurisdiction. It is so ordered. Sgd: K. M. Nyangarika JUDGE Date: 17/9/2008 Coram: Hon. K.M. Nyangarika, J. Appellant: Present For Republic: Mr. Matuma State Attorney B/c: M. Said Order: Judgment read today in the presence of Mr. Matuma Athumani, learned State Attorney and the appellant person. Right of Appeal explained. t K. M. Nyangarika JUDGE AT MWANZA 17th September,2008