MIXON YOHANA

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY

AT DODOMA DC. CRIMINAL APPEAL NO. 140 OF 2023 (Originating from Criminal case No, 32 o f2023 o f the District Court of Kongwa) 1. MIXON YOHANA...........................................................APPELLANT 2. LONI MUSSA LENG'HALA.............................................. APPELLANT

VERSUS THE REPUBLIC................................................................. RESPONDENT

JUDGMENT 04/ 07/2024 Hassan, J.: The appellants, one Mixon Yohana and Loni Mussa Lengtiala were jointly charged in the district court of Kongwa with the offence of Cattle Theft contrary to section 258 (1) (2) (a) and section 268 (1) (3) of the Penal Code, [Cap. 16 R.E. 2022]. After the hearing completed, both were found not guilty for the offence charged. However, the court on its course, found the appellant guilty for the offence of neglect to prevent an offence in terms of l section 383 of the Penal Code. Consequently, they were sentenced to serve a jail term of one (1) year. It was narrated in the particular of the case appeared in the charge sheet that, on 20th March, 2023 at Mautya village within Kongwa District in Dodoma Region that, jointly and together, the appellant did steal four heads of cattle valued at TZS. 4,000,000.00 the Property of Julius Manyana. Facts leading to the commission of this offence is as narrated in the evidence that, the appellants had a duty of taking care of the cattle and goats of the complainant. Their task included, keeping cattle in safe heard and handle them. However, instead of performing their chore well, the appellants were inefficient in their work and four cattle were missing. The incident prompted the complainant to report the matter at Kongwa police station and immediately investigation was triggered. At the end, the appellants were

jointly charged, convicted and finally sentenced as aforementioned. Aggrieved, the appellants teamed up with 10 grounds of appeal. However, for a reason to be apparent soon, I will not up load the said grounds of appeal here. 2 During hearing, the appellants were present under the warden of learned advocate Ms. Joanitha Paul. Whereas, on the other side Ms. Bertha Kurwa in assistance of Ms. Nancy, both learned State Attorneys, were also present for the respondent Republic. To kick start, learned advocate Ms. Paul submitted that, this appeal emerged from Criminal Case No. 32 of 2023 originating from District Court of Kongwa. And thus, on the 1st ground, she contended that the district court erred in law and fact for not taking into consideration the evidence of the appellants. She therefore resisted that looking on the proceedings, the 1st appellant testified that, they were given 70 heads cattles by Mr. Bahinoti. And the evidence that they were given 70 heads cattles by Mr. Bahinoti was corroborated by evidence of the 2nd appellant and DW3. Also, Ms. Paul submitted further, that, DW3 testified that Bahanoti is his father and he, DW3 himself was the incnarge of the grazing camp and no cattle theft had taken place at the camp. Additionally, learned advocate averred that, the 2nd appellant together with DW3 testified that they did not know the complanant (PW1). And due to the

reason that they did not know PW1 thus, they did not have any responsibility against him. Therefore, because of that, the appellants' 3 evidence should have been considered. Provided that, in his evidence, PW1 had not testified to have handed over his cattle to the appellants for grazing. Finally, she concluded that, if this evidence was considered, the trial court should have find the accused persons not guilty. Coming to the 2nd ground of appeal that prosecution have not proved their case beyond reasonable doubt. Ms. Paulo submitted that, it is clear from the proceedings that, there is nowhere the appellants herein were revealed to have been handed over the stolen cattles or to have participated in the theft of the said cattles. Therefore, she pressed that with this ommission, prosecution has not proved their case beyond resonable doubt for the offence which they have alleged. Submitting the 3rd ground of appeal that the appellants were convicted for the offence which they were not charged with by prosecutions. She succumbed further that, the appellants were charged with the offence of Cattle Theft under section 258 (1) (2) and section 268 (1) and (3) of the Penal Code. As a result, they were convicted under section 383 of the Penal Code, Cap. 16 R.E. 2019 for the offence of neglect to prevent an offence. On that, she stressed that in her view, the court has erred to convict

the appellants with the offence of neglect to prevent an offence which they were 4 not charged with by prosecutions. And because the offence and section which the appellants were convicted with is not a cognite offence to the offence which they were charged with. Therefore, she submitted, in such circumstance the appellants were not given an opportunity to defend their case in the offence which they were convicted with. And since the offences and laws were different, then the appellants have not been afforded with fair trial. At this point, Ms. Paul referred the court on the case of Elmi Bin Yussuf v. Republic (2018) TLR 181 at page 12, where it was held that, though a Magistrates or Judges has power to convict the accused for different offences from what he was originally accused of, this must be done in cases where the accused is not in anyway prejudised by the conviction of a new charge. The accused person is entitled to know with certaininty and accuracy the exact nature of a charge brought against him unless he had this knowledge, he must be seriously prejudiced in his deffence. Also, in the case of Robert Ndecho & another v. Republic (1951) EA CA 171, it was also held that: "Where an accused person is charged with an offence, he may be convicted o fa minor offence although not charged 5 with it, if that minor offence is o f a cognate character. That is to say, o f the

same genus and spicies." Therefore, since the court had convicted the appellants with offence which they were not charged with, and of which the appellants had not been given opportunity to defend themselves, and thus, in the advocate's view that is a fatal ommission which lead to an unfair trial for the appellants being condemned with their right of being heard. For that reasons, she prayed to allow the appeal, quash conviction and set aside the sentence meted by the trial court. On the other hand, Ms. Kurwa, learned State Attorney readily supported the appeal. She further submitted that the court has misdirected itself in convicting the appellants under section 383 of the Penal Code for the offence of neglect to prevent an offence which they were not charged with instead of the offence of Cattle Theft which they stood charged. She also stressed that, the offences of neglect to prevent an offence is not cognate to the offence of theft. In support of what she has submitted, Ms. Kurwa pressed that in addition to the authorities relied by the appellant's advocate, of which she 6 subsribed, she also cited the case of Mwita Magore v. Republic (1984) TLR 279 where the court discussed in deep about cognate offence. Therefore, in the end she prayed the court to allow the appeal, quash conviction and set a side the sentence imposed by the trial court. Having gone through submissions,

it is pretty clear that owing to the circumstance of this case, the issue to be determined by the court is whether or not conviction and sentence resulted by the trial District Court are justified. First and foremost, I fully subsribed to the submissions from the counsels about principled guidelines with regards to substitution of conviction to lesser/minor offence even if the accused person was initially not charged with. Looking on section 300 (2) of the Criminal Procedure Act which imposes substituted conviction. The section reads: " Where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted o f the minor offence although he was not charged with it." 7 From the foregoing provision of the law, which entails that the court can legally convict a person for the offence as the lesser offence. This position was also underscored in numerous decisions such as in Nathanael Nkulikiye v. Republic [1982] TLR 196 where this court amply stated that: "The general rule applicable in substituting convictions is that the verdict sought to substitute the existing one must be one involving a minor and cognate offence to the offence charged. " In another case of Mwita Magore v. Republic (supra), where for removal of doubts, the term cognate has accorded a clear explanation. In this case the court stated: "A cognate minor offence is one

that forms part o f a series o f lesser offences which must be committed in order to complete the major one." That said, coming to the instant appeal, it is apparent that the appellants were charged with the offence of Cattle Theft contrary to section 258 (1) (2) (a) and section 268 (1) (3) of the Penal Code. But after analysis 8 of the evidence adduced, the court found the appellants guilty and right away convicted them of the minor offence of neglect to prevent an offence in terms of section 383 of the Penal Code. In my considered view, as rightly submitted by the advocates, that the two offences do not fall within the ambit of cognate offences. That means, the test underpinned in the authority above has not squarely fitted. Thus, indeed the offence of neglect to prevent an offence is not a minor offence of cattle theft. And therefore, the two offences involve distinctive elements which cannot be related or knotted. That is to say, even its defense may probably be arisen from different ambits. In such circumstance, in order to accord a fair trial, it was vigorously important to give the appellant an opportunity to defend their case. In my firm opinion, what was offered by accused persons in defense for the offence of cattle theft cannot generously be taken to suffice defense for the offence of neglect to prevent an offence. In my thoughtful view, for all fairness, failure to

accord the appellants a chance to defend themselves against conviction for the offence of neglect to prevent an offence is typically resulting to the failure of justice. 9 Hence, owing to the circumstance, the appeal is allowed and thus, conviction is quashed and sentence and orders meted out by the trial court are set aside. Ordered accordingly. DATED at DODOMA this 4th day of July, 2024. 04/07/2024 This Judgment delivered this 04th day of July, 2024 in the presence of the parties. 04/07/2024 10