CRIMINAL APPLICATION NYIDO MWANDIKI

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA MISC. CRIMINAL APPLICATION NO. 000028444 OF 2024 REFERENCE NO. 202410042000028444 BETWEEN NYIDO S/O MWANDIKI @ NGEGU ..............................APPLICANT VERSUS THE REPUBLIC....................................................... RESPONDENT RULING 12th & 13th November, 2024 M, L, KOMBA, J, Upon full trial, the District Court of Bunda (the Trial Court) satisfied that the prosecution proved their case beyond reasonable doubt against the appellant. The trial Court proceed on convicting the appellant of two counts, unlawful possession of Government trophy and unlawful possession of weapons in the park contrary to law. Upon conviction, appellant was sentenced to nineteen years imprisonment and to pay fine to the tune of TZS 100,000/. Unsatisfied by the decision of the trial court. Timely appellant lodged his petition of appeal to this court with five grounds as follows; Page 1 of 5 1. That, the learned trial magistrate erred in law and fact by convicting the appellant for possession of government trophies without sufficient evidence to prove beyond reasonable doubt that the appellant was in possession ofsuch trophies. 2. That, the Learned Magistrate failed to property assess the evidence regarding the identification of the alleged government trophies. Also the prosecution failed to present reliable evidence to conclusively demonstrate that the items in question were indeed government trophies as per the wildlife conservation Act. 3. That, the trial court violated the appellant's right to a fair trial by retying on inadmissible evidence. The right to cross examine key witness and critical evidence was admitted without following proper legal procedures. 4. That, the sentence imposed on the appellant is excessive and harsh considering the circumstances of the case. The learned magistrate failed to consider the mitigation factors and the appellants personal circumstances leading to a disproportionate sentence. 5. The trial court erred in convicting the appellant without proving that the appellant had the necessary means rea (intention) to possess die government trophies. The prosecution did not present evidence demonstrating that the appellant knew that the items in question were government trophies. During the hearing of this appeal, the appellant appeared solo without representation while the respondent represented by Ms. Agma Haule, State Attorney. Page 2 of 5 When given time to argue his appeal appellant was very brief, he prayed this court to adopt his petition of appeal and release him from prison. Ms. Haule, State Attorney opted to start with the fourth ground and submitted that, she read the proceedings and noted that on August 2024 when defending his case, the appellant testified that he was 18 years old. Record further show that the crime occurred in August 2023. It was her observation that by the time appellant commit the offence he was 17 years. She went on submitting that the issue of age was not considered and determined by the trial court, the fact which she found was not proper and insisted that shortfall need to be analysed as was decided in Andrea Andrea vs Republic, Criminal Appeal No 23 of 2021 reported in 2024 TZCA 1026. She narrated that in the cited case when Court of Appeal analysed the similar situation ordered that the age of accused was to be considered. She proceeded that in the case at hand she was of the position that, the appellant was under age and the trial court which was Bunda District Court had no jurisdiction to hear the matter. She the prayed under section 366(l)(a)(i) this court to remit the file to the court which vested with jurisdiction. Basing on that prayer, she further prayed proceedings to be nullified and the matter be heard to Page 3 of 5 the court with proper jurisdiction. It was her belief that this ground is enough to dispose off the appeal and therefore she did not submit on the rest of grounds. When given time for rejoinder, appellant prayed me to consider that he is an orphan. Having heard the submission by the State Attorney, I read records and proceedings of the trial court and find that on 18/12/2023 when facts was read to appellant it revealed that appellant was arrested on 24/8/2023 at Kitemwaka area within Serengeti national Park. Reading further I noted in proceedings on 27/8/2024 in he defence he testified that he has 18 years. Just as submitted by State Attorney, by the time he commits the offence he was under 18 years and the Age of Majority Act, Cap 43 at section 2 provides that; Every person domiciled in Tanzania shall attain full age and cease to be under any disability of minority at the beginning of the eighteenth anniversary of the day on which he was born. . That means an adult is a person above 18. In the case a hand, when appellant commit the offence was minor who was supposed to be guided by the Law of the Child Act, Cap 13 R.E 2002 in which section 4 (1) provides that; Page 4 of 5 (1) A person below the age of eighteen years shall be known as a child. The same Act, Cap 13 established a special court that; 97.-(l) There shall be established a court to be known as the Juvenile Court for purposes of hearing and determining child matters. Form the above excerpts, a minor who is in conflict with law has a special court to entertain his matter. So far as on August 2024 appellant testified to be 18 years and it is not disputed that the offence was committed in August 2023, the issue of his age is not certain and the trial court ought to analyse it before it proceeded. See in Andrea Andrea vs Republic (supra). Minors has their own court, law and procedures. At this juncture, I join hands with State Attorney that appellant was tried in court which had no jurisdiction. This ground is sufficient to dispose the appeal. As a consequence, I hereby nullify proceedings of the trial court and set aside conviction and sentence. I proceed to order the matter to be tried by a court with proper jurisdiction in expediate speed. It is so ordered. k M. L. KOMBA JUDGE 13th November, 2024 Page 5 of 5