Shukuru Hashimu vs Republic

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA CRIMINAL APPEAL NO. 27047 OF 2024 (Arising from Criminal Case 4279 of2024 District Court ofMissenyi) SHUKURU HASHIMU............................................................. APPELLANT

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

RULING 31/10/2024 and 31/10/2024 BANZL J.: On the 6th day of March, 2024, the appellant was convicted on a plea of guilty by the District Court of Missenyi (the trial court) for the offence of grave sexual abuse, contrary to section 138C (1) (d) and (2) (b) of the Penal Code [Cap. 16 R.E. 2022] and was sentenced to twenty (20) years imprisonment. In addition, he was ordered to pay Tanzanian shillings five hundred thousand to the victim as compensation. The appellant is now before this Court challenging his conviction for being based on equivocal plea of guilty and his sentence to be illegal as he is a child below 18 years. At the hearing of this appeal, the appellant appeared in person, unrepresented, whereas, Mr. Jamali Issa, learned State Attorney represented the respondent, Republic. Before hearing commenced and upon physical Page 1 of 4 observation, it appears to this Court that, the appellant is the child below the age of 18 years. Since his trial before the District Court of Missenyi proceeded as if he was of the age of majority, parties were invited to address this Court on the propriety of the proceedings before the trial court. The appellant had nothing much to say. In his brief submission, he stated that, he was born on 3rd November, 2008 at Mwemage village, within Missenyi District and thus, he will turn 16 years old in three days to come. On his side, Mr. Issa began

his submission by revealing his observation towards the appellant who according to him, just by physical appearance, the appellant is the child. He added that, according to section 113 of the Law of the Child Act [Cap.13 R.E. 2019] (the Law of the Child Act), the trial court is mandated to conduct inquiry in respect of the age of the accused person who appears to be the child. In that regard and since the requirement of the law was not complied with, he urged this Court to nullify the proceedings of the trial court as the appellant was supposed to be dealt with by Juvenile Court. He also prayed for the conviction of the appellant to be quashed and sentence to be set aside so that, he can be re-tried before the competent court. As alluded above and as rightly submitted by the learned State Attorney, just by physical observation, the appellant appears to be the child. Page 2 of 4 In his brief submission, the appellant said to be born on 3rd November, 2008. This clearly indicates that, at the time when he stood for trial before the trial court, he was 15 years old. Besides, through his physical appearance, it does not require documentary or scientific evidence to prove that, the appellant is below 18 years old. It is very unfortunate that, the glaring childish face of the appellant did not impress the learned trial magistrate, otherwise, she could have conducted inquiry pursuant

to section 113 of the Law of the Child Act before proceeding to deal with him as the person of the age of majority. Under the prevailing circumstances, the District Court of Missenyi lacked jurisdiction to try the appellant's case who is under eighteen years of age. Thus, everything transpired before the trial court was nothing but a nullity. Consequently, I invoke my revisional powers under section 372 of the Criminal Procedure Act [Cap.20 R.E. 2022] and nullify the proceedings of the trial court, quash the conviction and set aside the sentence and compensation order meted against the appellant. I order the expeditious trial of the appellant before another magistrate at the Juvenile Court within Missenyi District. In the meantime, the appellant shall as soon as practicable be handed over to Missenyi Police Station so that, he can be released on bail on a recognisance being entered into by himself or by his parent, guardian, Page 3 of 4 relative or without sureties pursuant to section 101 of the Law of the Child Act while awaiting to be arraigned and tried before the Juvenile Court. It is accordingly ordered. I. K. BANZI

JUDGE 31/10/2024 Delivered this 31st day of October, 2024 in the presence of the appellant, Mr. Jamali Issa, learned State Attorney for the respondent, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. I. K. BANZI

JUDGE 31/10/2024 Page 4 of 4