NA TZHC Dar es Salaam 3 1

- 37 - IN Tlfil HIGH CGDRT QF TAN1J.I\NIA ~- AT DAR - --~SALAAM~--- ..... ES ,._ __ ··• .............. A~P_FJµT~ ..J].13!SDICTION . ~IC CRj]UNAL APPZA.L NCG ?1/92 ORIGINAL C:RIMii'JAL CASE l•t:. 68/91 OF THE LISTRICT COli1?S 1 OF KIIDHBERO J::: ~T~·::;:-:;'11 :1T IFAKARA:-··--•.:. BEFORE ............... _ S. f'iVi:.~;J;_ ~<=·~·='RICT l!IAGI 3'I1Ri~TE: .. -...__ ;_.,_,.,ct•,,-., • - " -----~- ..... -... --................ ,:>.,. ~--· - ...... - - ~ - . . , ~ RASHIDI JAIDI KIYUNGI •••• oAPPEIJ.J\Nl' ..,. ___.,._ JUDGivIEN~ __ ~~,..-~ ,. ___., . _~ KY.ANDO J; -~.,.t ..-~, The appellant was convicted c•f Tohbcr-J under ss 0 285 and 286 of Pen.aJi Code; it being nllcgecl thot on 13th July 1 1988, at the Mang 1 ~a Mechanicnl an<;l. Machine TooJ.s factory, in Kilornbero District,:• Morogoro Regior,- he stole n gun, a semi - 1\.utomatic Rifle (SAll.) Number 819491 1: from Claz:q_nce Mpinzi, ;r~mcl. immediately before or after the stealing used actua:Lvio1crc:;e in 0rdcr to retc.in the stolen gim. 0 Following his conviction the appellant was sentenced to impri- sonment fer 30 ·y~ars. .It is against sentcmce that he is now appealing. to this court. At the hoarinc; of the appeal he appreared in person. ·-·f: The Republic was represented by this Kiwanga, le:.arnod State Attorney 20 My brother Mapigano,J. who admitted th(:; ap;1eal to hearing minuted. ~tted. Appeal agab.st sentence legally tenablen• At the hearing Miss Kiwanga submitted that in the first place the appeal by the appellant had been lodged out of tir:10. She said this was .because he was convicted on 26/11/91 but gave notj,ce of_ his intention to appeal on 31 o 12. 91.. He applied for a copy of judgment of the District Court on the same date., Miss Kiwanga submitted that the giving of notice by the ecr,pe:llant was done out of time for the law preseribes a period of t8n da;ys from tho date of the conviction or sentence within which he shoul~ have arpealed. She submitted that 30 the appeal is accordingly incompetent. Alternatively,. she: soinfed c.:::t: if this cow·t fir;ds the appeal compentent, then it ( the appeal) i.s o:;_1ly against sentence. She said concerning L1is~ L 0 0 uci'ntence, it was true that it was illegal, because, she submitted, the robbery was comntltted on 13/7/88 and the appellant was sentenced to the minimum sentence provided for by an Act which was passed in 1989 (It came into force on 26/5/89). Miss Kiwane;n sugmitted therefore that it 1.:-12.:: wr-:ms o!-: the part of .. : . ll the District Court to pass the suntenco under n 12-w which was not in force 1:1hen the offence was cornrni tted, !n this she agreed with the app82.lant, Innis petition of appeal the appellant contends:- "I, RASHIDI s/o SAID KIYl::;.'JGI, beir.g the appellant in this case is dissatisfied with the decision of the dist:.:·ict court of Kiloinbero district at Ifakara s. Mbaga DM give at district court of Ifakara on the 26th day of November, 1991 for thG offenco of robbery with violence c/s 285 and 286 of the Penal Code Cap.16 Vol.1 of the laws, do hereby 10 appeal against the sentence only on the followin 0 grounds:- ( 1) THAT, My Lord the sentence met'3d out by the trial Magistrate was wrong i_n fact and law, as it offends article No.13 (6)(c) of the United Republic of Tanzania Constitution 1977, also this sentence is contrary to section 49 of cap 1 article 13 (6) (c) of the constitution of the United Provides that:- I.n order to ensure equal:!.ty. before the law the relevant authority in 9uuntry shall pass laws which are accepto.ble or which Maintain the principles that:- It is Prohibited for any pEJt· ::;ons to be punished for acy act 20 .... which at the time of doing it was not an offence under the law, and also it is prohibited for punishment to be meted cut which is gr-eater than the punishment which was authorised at the time when the relevant offence was commitedo In this case the evidence on record as per charge sheet shows' that the offenc0 was c01n:::i.tec~ on the 1zt_~J!_ay of . JulA,,12.§.§. by the time the maximum sent enc,~· o:f robbery with violence was 8 years jail sentence with 2.. Minimum of 7 yeo:rs., _The enactment of act No.1O/89 came into force on 26th,May, 1989 and since this partiuciar offence was committed on 13th July 5 19:::-8 it was-long before the enactment of Act Noa1O of 1989 thus does mt fall under this category. This is to say, it I was found guilty by then I was entiled to get a Minimum of 7 years or a Maximum of .years imprisonment as required by law; for the law :r_)rohibits punishment to be meted to the offencer which creater tk1.n tho punj.shrr.ent which was authorised at the offender which creater. than the punishment which was suthorised at the time when the offence was commited the sentence of ":I) years given to me was illegal, had to be substituted by l1inimum of 7 yrs. or a Maximwn of 8yrs which was by thon o.llowcd by the_ lawo 39, •. .I'bw turning back ti foe · se~·cion 1+9 of the interpretation of laws and general clauses Act (capo1) provides that "WHERE an act· consti tues an, offence :md the penalt for such offence is amended botv,ecn the ti:1i:c cf commission of that offen"..c i..1.~·.c'. ~ ,_;,nviction~ THExIBFOilli t:1e offender si-;.,.."<ll, i;.,il.ess -~< t~1c contrary intention appears, be liable to the penalty prescribed at the time of the commission of such offeiice.~ 1 My Lord this provision is similar to tnnt of the consitution except that the constitution provides an 2."!::•solute Prohibition while 10 section 49 given a provision of a contrar? intention. In this case the Trial M,':'.. 0 istr2.te dicl not point any contrary ~ntention in Act Noo 10 of 1980 which led him to draw his inference • when giving is conclusion of rnr:tting YJ years :ir:1},risClnment to the appellant. THEREFORE. th0re is no c111y provi,sion. that the new minimum punishment is to operate even thou 0h the offence was committed'before the enactment of Act No1110 ::>f 1989 of vice-versa. A similar case is·c~.r0breted in the case of Mashaka Shabani VR. (1990 in Crimibal Appeal Noa 85· of 1990 original Case No. 132/89/ HG Morogoro the appeal court had this to 2,c.y r, 20 The resident magistrate, court if it felt the· occasion called for a stiffer sentence than 8 Jem"s even though with in the maximum life imprisonment~ it had to eriList tb.o assi,stance of the High Court~ That was not done. We also do not see that there is a contrary intention ~n Act No.10/89, that is to say we do not find any provision that tho punishment is to operate spectivelyG So the sentence of YJ years that was imposed on the appellant was illegal. We there-· fore set it aside and substitute it with 2 years from the date he · was sentended by the district courtc (2) THAT, _from the aforesnid reasons I pr~y to your Lordship to 30 allon my appeal quash the sentence and adjust tho punishment accordingly as provided by the law. WHEREAS:- ·I wish to be present on the hearing date of my appeal that do not wishes to engage an advocate represent mo. RASHIDI s/o SAIDI KIYUNJI (APPELLANi') I propose to first consider an4 determine the first poipt raised by tiss Kiwanga, is that the appeal ~ncompet.ant 40 - 4o - ' in the court case file for the appellants notice of appeal but have found none. . The only inform.ition about th(:: j)oint is that which is contained in tho petition of Appeal wherein at the.foot there are the following particulars made by the prison authorities:- Date of convictio::. 26/11/91 Date of copy Judgmem; wcJ3 q:iplfod for 31/12/91 Date of copy of judgment received 1Lt/5/92 Date Memo of .Appe&l prepared 20/5/92 Da±e memo of AppeD.l Forwi:Lrdod 5/6/92 As can be seen, there is nothing even in theso particulars indic~ting 10 that a notice of appec1.l was given and, if so, when. But as indicated already, the appeal was admitted to hearing. It is to be assumed now the refore th2.t the appellant did give notice of his intention to appeal and that he did so in time. At least he on be given the benefit of doubts with regard to this and can be held to have given the necessary notice. His appeal is'therefore hereby accepted as competent. Comming now to sentence, it is clear cc,3 ,:ell lady noted that both the appellant and the Republic through Hiss Kiwanga are agreed, and for the mutual reasons which they give, that the sentence passed by the trial court is illegalo I, with respect, a£7ee with them and 20 ' for the same reasons that they have, advanced I allow the appellant's appeal to this court therefore and I quash and set.aside the sentence of thirty (30) years imprisonment imposed on him (the appellant) by the court below under the Written laws (Miscellaneous Amendments) .Act, 1989 (Act No. 10 of 1989)., I substitute for such sentence a sentence of fifteen ( 15) yecll's imprison:?cnt I pass this sentence being fully aware that the maximum the trial court could have passed for the offence under the MSA, 1972, is o:nly up b eight years. imprisonment. However~ s,,366 (3) of the 6riminal Procedure Code, 1985, empowers this court, in an appeal, to impose agreate~ 30 punishment than the punishment which might have been inflicted by the court from which the appeal comes" I have used the sentence I have sµbstituted for the one inflicted by the court below therefore in the terms I am empowered by these provisions cf tho law. Appeal (against sentence) allouedr Sentence of 30 yrs' imprisonment substi tutc:9. by sentence of fiftee;t}.( 15)yrs1 :imprisonment.