SHIJA JIKALI VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY)

AT SHINYANGA CRIMINAL APPEAL NO.40528 OF 2023 (Arising from Criminal Case No. 39 of 2023 in the District Court of Shinyanga at Shinyanga.) SHIlA JIKALI @ SAYU APPELLANT Versus

THE REPUBLIC RESPONDENT

JUDGMENT Date of Last Order: 28.02.2024 Date of Judgment:30. 04.2024 MWAKAHESYA, J.: On the 16th of February, 2023 the appellant, Shija Jikali @ Sayu, stood charged in the District Court of Shinyanga at Shinyanga with two offences to wit: Stealing contrary to section 258 and 265 of the Penal Code; and Possession of goods suspected to be stolen contrary to section 312(1)(b) of the Penal Code. He pleaded not guilty to the former charge but to the latter he pleaded guilty. The trial court proceeded to convict and ;-r-I 1 sentence him to three years imprisonment, which is the maximum term for the offence, the trial court having taken into consideration the aggravating factors adduced by the prosecution and uncontested by the appellant which were to the effect that the appellant was a recidivist as he was previously convicted of the offence or armed robbery. Regarding the offence of stealing, the trial proceeded to finality where the appellant was found guilty and sentenced to imprisonment for a term of five (5) years, this was on 08.05.2023. Following conviction on his own plea of guilty on 16.02.2023 and subsequent sentence, dissatisfied, the appellant lodged a notice of intention to appeal on the 20.02.2023 against both conviction and sentence. However, it should be noted that, the notice of intention to appeal was not followed up by a petition of appeal. Turning to the

conviction and sentence on the charge of stealing, which was delivered on 08.05.2023 the appellant, for reasons best known to himself, never filed a notice of intention to appeal. However, on 20.11.2023 he filed a petition of appeal, the said petition showing that he was appealing against convictions and sentences of both offences that he stood charged with on 16.02.2023. For obvious reasons I find itr' 2 unnecessary to reproduce the grounds of appeal contained in the petition of appeal. However, it is necessary to reproduce the charge that was laid before the trial court on 16.02.2023. The same read: "CHARGE

STATEMENT OF OFFENCE STEALING: Contrary to section 258 and 265 of the Penal Code [Cap. 16 R.E 2022}

PARTICULARS OF OFFENCE SHIJA S/O JIKALI @ SA YU on l!Jh Jenuary, 2023 at Kitangini area within Shinyanga Municipality in Shinyanga Region stole motorcycle with registration number MC 933 CRA make SANLG valued at TZS. 2/200/000/= the property of OMARY S/O SALUM.

STATEMENT OF OFFENCE

POSSESSION OF GOODS SUSPECTED TO BE STOLEN OR UNLAWFUL ACQUIRED: Contrary to section 312(1)(b) of the Penal Code [Cap. 16 R.E 2022}

PARTICULARS OF OFFENCE SHIJA 5/0 JIKALI @ SA YU ON l!Jh day of Jsnusry. 2023 at Kitangiri B wIthin Shinyanga Municipality in Shinyanga Region was found in unlawful possession of motorcycle with registration number MC 933 CRA make SANLG valued TZS. 2/20~000/= the property of OMARY S/O SALUM being suspected to have been stolen or unlawfully acquired D~ted at Shinyanga this. dayof 2023 STATE A TTORNEY" 3 On 15.03.2024 I invited the parties to. address the court an whether it was proper to. charge and convict the appellant with the offence of stealing and being found in possession of property being suspected to. have been stolen or unlawfully acquired, the charges not being charged in the alternative in the alternative. Ms. Nyamnyaga Magoti, learned State Attarney far the respondent Republic was af the view that, it was proper far the trial court to. do. so. She cited section 133(1) and (2) af the Criminal Procedure Act which provides that: "133.-(1) Offences may be charged together in the same charge or information if the offences charged are founded on the same facts or if they form or are a part of a series of offences of the same or a similar character. (2) Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count. // The learned State Attorney

concluded that the appellant was rightly. J canvicted and sentenced. r. 4 •• In response, the appellant was of the view that he was wrongly convicted and sentenced with the two offences which should have been charged in the alterative. I am at one with the learned State attorney that section 133 of the CPAallows for joinder of counts in a charge, but respectfully, I am of the view that the counts of which the appellant was charged with were of such anature that only one of them could be charged and the other ought to have been charged in the alternative, for how could one be charged with stealing an item and then charged with being found with the same item suspected to having been stolen? In fact, I find solace in section 306(1) of the CPAwhich provides that: ''306.-(1) Where a person is charged wIth stealing anything and the court is of the opinion that he is not gUIlty of that offence but that he is guilty of an offence in respect of that thing under one of the sections 302/ 30~ 311 and 312 of the Penal Code/ he may be convicted of that offence although he was not charged with it /F Section 312 of the Penal Code deals with having possessionof goods suspected of having been stolen or unlawfully acquired, which is exactly what the appellant was charged with. Thus, even if the prosecution did not charge the appellant under section 312 of the Penal Code, the trial court 5

r o could have convicted him under that provision if the evidence did not suffice the charge of stealing. Having charged the appellant under section 258 and again under section 312(1)(b) of the Penal Code, and not in the alternative, the charge was duplex for the said counts share the same particulars of offence, in Noah Paulo Gonde and another Versus D.P.P, Criminal Appeal No. 456 Of 2017, CAT -Mbeya (unreported) where the appellants were charged with armed robbery contrary to section 287A of the Penal Code, Cap. 16 R.E 2002; and the being in possession of goods suspected to have been stolen or unlawfully acquired contrary to 'section 312(1)(a) of the Penal code, the said counts not being in the alternative, at page 12 of the judgment, the Court had this to say: ''In this case/ It is without question that the particulars in the first count of robbery concerning the stolen property i.e the three wheeler motorcycle commonly known as bajaj with registration number 270 ACY and side number JUWB 170 are the same with those appearing in the 2nd count Since the circumstances of this cese are similar to what pertained in Omari Mohamed China and 3 Others' case/ we are inclined to find that even in this casepreferring the two counts based on similar particulars was unnecessary as it amounted to duplicity. // Having found the charge being bad for duplicity, the question that remains is on

the way forward. The appellant had pleaded guilty to the ;v-t 6 second count and was convicted and sentenced forthwith, and after a full trial he was also convicted and sentenced on the first count. Much as I am tempted to rule that only the first conviction should stand and the second conviction to be discarded, I am not convinced that this is a fit case to so, the principle of First In, First Out "FIFO" does not seem to apply. That said the appeal is allowed, the convictions of the trial court are quashed, and the sentences set aside. However, in the interest of justice I make an order for a retrial before a different magistrate, and just in case the appellant is to be convicted and sentenced again, the time already spent incarcerated should count as time served. In the meantime, the appellant is to remain in custody as a remand prisoner awaiting his trial. It is so ordered. ;v--6 N.L. MWAKAHESYA

JUDGE 30/04/2024 7