stanford sylvester vs republic 2021 tzhc 7629 3 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF BUKOBA

AT BUKOBA CRIMINAL APPEAL No. 39 OF 2021 {Originating from Criminal Case No. 79/2019 of Karag we District Court) STANFORD SYLVESTER ........................................................ APPELLANT

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

JUDGMENT Date of last order: 25/11/2021 Date ofJudgment: 03/12/2021 KHekamajenga, J. The appellant, one Stanford Sylvester, was charged with the offence of store breaking and committing an offence contrary to Section 296 (9) and (b) of the Penal Code, Cap. 16 RE 2019 and failure to prevent an offence contrary to Section 283 and 35 of the Penal Code, Cap. 16 RE 2019. After the full trial of the case, the appellant was convicted and sentenced. For the 1st count, the appellant was sentenced to serve seven years in prison; on the second count, the appellant was sentenced to serve six months in prison. The appellant approached this court for justice and raised five (5) grounds of appeal challenging the decision of the trial Court. When the appeal was scheduled for hearing, the appellant appeared to defend the grounds of appeal. On the other hand, the learned State Attorney, Mr. Joseph Mwakasege was 1 present for the respondent, (the Republic) and he was ready to assist the Court to do justice. Before the appellant made the oral submission, the learned State Attorney informed the Court on one legal issue worthy consideration by this Court. He argued that, the appellant was convicted under Section 296 (A) (b) of the Penal Code and Section 383 of the Penal Code. In this case, the appropriate Section against the appellant was Section 383 of the Penal Code as the appellant, being a

watchman at the school where the store was broken, failed to take reasonable steps to prevent the commission of the offence. In this case, there is no evidence to link the appellant with the offence of house breaking and stealing the alleged properties. In other words, the prosecution failed to prove the 1st count against the appellant and therefore, the conviction on the 1st count was not proved. Mr. Mwakasege invited the Court to evaluate the evidence and make a judicious decision. In response, the appellant simply supported the submission of the learned State Attorney. In this case, it is important to understand that, the appellant worked as a watchman at Astole Secondary school in Karagwe. On 17/12/2018, bandits sneaked into the school compound, they broke the school store and stole the 2 school properties including computers. Being a person responsible for the security of the school, the appellant was arrested and charged with two counts; first, store breaking with intend to commit an offence; second, failure to prevent the commission of the offence. To prove the case to the required standard, the prosecution summoned five witnesses. Unfortunately, among the five prosecution witnesses, none of them ever mentioned or implicated the appellant with the offence of store breaking and stealing the school properties. It is therefore evident that the prosecution did not prove the

1st count against the appellant even though the trial Magistrate ended up convicting and sentencing the appellant for seven years in prison for the offence that was not proved. However, the trial Court was right in convicting and sentencing the appellant for the offence of failing to prevent the commission of the offence. Being a watchman of the school, he was supposed to be watchful and ensure that the school premises were safe. It was his responsibility to prevent any commission of the offence. Now, based on the reasons stated above, I find merit in the appeal. I find the appellant has already served the period of imprisonment for the offence that he was rightly convicted and sentenced. As the appellant was convicted and sentenced on 18/06/2019; he has therefore served more than six months for the 2nd count. I partly allow the appeal. The appellant should be released forthwith as soon as possible unless held for other lawful reasons. It is so ordered. 3 Ntemi N. Kilekamajenga

JUDGE 03/12/2021 Court: Judgment delivered this 03rd December 2021 in the presence of the appellant present in person and the learned State Attorney, Mr. Joseph Mwakasege. Right of appeal explained to the parties. Ntemi N. Kilekamajenga

JUDGE 03/12/2021 4