20150429 TZHC Mwanza

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IN THE HIGH COURT OFTANZANIA IN THIE DISTRICT REGISTRY·

AT MWANZA HC CRIMINAL APPEAL No. 118 OF 2014 . -· (Arising from Criminal Case No 26 of 2010 at Sengerema District Court

BETWEEN STEPHANO DANI'EL11 •• • m ■ ■■■■ ■■■ ■ ■ 1111 ■ ■•• ■ JD" ■■ a ■■■ c.a 111111111 ■ 1111.11 elli ■ ■ cs.11 ■ ■■ •Iii ■■ aAPPElLANT II I! AND REP_,UBlIC.11111: ■•••• I ' ■ ll ■ a11a •• ■·■ 11 ■■ 1 1 ■ ■■■■ ■ ■ ■■■■■ II ■■■ 1111 ■ ■ 11 s11111111ci ■ c ■ ■■ C!I ■ ■■ ■■ ■■■■ .--11RESPONDENT

JUDGMENT 24 th , - 29 th , April 2014 J. A. De-Mello, J; In a strange manner the conviction and sentence leveled against the Appeliant is from the initial . charge of 'Theft' contrary to section 265 of . Cap 16 to a charge of 'Negligence' contrary to section 16 of the Evidence Act Cap. 6. - The Appellant was then sentenced to· serve conditional discharge for twelve (12) months while maintaining a 'good character'. As if this is .not _enough section 16 of Cap 6 does not-even refer to the charge of negligence. n· efers to facts showing existence of state of \ mind or body feeling! · ~ J. I . ·.-····- .- . ! The law is very clear· that any _person charged of an offence ought to be convicted and sentenced according to t law ·after proof and not otherwise. The issue and without wasting the Cou_rts valuable . . and .precious time is wh_~ther there· was any justification for the Trii;:il Magistrate to substitute the conviction of an offence earlier charged that of 'Theft' to 'Negligence? The powers of varying a charge and evidence and or am_endment is laid down in section· 234 of the Criminal Procedure Act Cap 20 as it reads; "Where at any stage -of a tr:ial it appears to the Court tha1t the charge is defective either in s~bstance or form, the Court may make such order for alteration either by way of amendment: ... or substitution or addition of a ne'!V charge as the Court thinks

necessary to meet the circumstances of the· case un~ess hav.ing regard to the merit of the case the· ,required amendments cannot be made ·without· injustice; Sub-section (2) of section 234 (supra) are the criterias and requirements to be fulfilled in the event. Unless this is complied to, it certainly cannot be said that any of this empowers the Court~to ~~ a conviction from the initial charge to a Sy 2 I. . . . new charge. Ir:i the case of R vs. AnyahrlfHe s/o _t'~'i'lt1aikusa [1968], HCD · No. 270 the accused was charged with 'housebreaking' but the Court · convicted him of 'malicious damages'. In quashing the conviction, Georges, C.J (as he then· was) said; "There are no specific provisions empowering the Court t:o convict under secteon 326 (1) where·~ charge has been laid down under section 294 (1)... does not create an offence consisting of several . ,particulars a combination of some only which constitute the offence created under... With due ·respect, I agree that the Court can not convict a person· against a· different charge because there is no specific provision in Criminal ProcedUJ~e Act giving powers to do that. I woukil the~efore for the reasons quash all"ild set aside the sentence ... imposed against the accused". In the above analysis I need not detain myself into the submissions of both · parties all conceding to the Appeal as well as the facts surrounding the matter conducted at Trial and leading to that finding. I allow Appeal as I s t a1ide the onviction and sentence. ~ 3 l. I order. Judge 4