YOHANA MAULID PAPU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB REGISTRY) AT MWANZA CRIMINAL REVISION NO. 11684 OF 2024 (Arising from the Judgement of the District court ofliemeia in Criminal case 53 of2022) BETWEEN YOHANA S/O MAULID PAPU....................................................... APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT JUDGEMENT 2$h & 28h October, 2024 A. MATUMA, J. The applicant was charged for Stealing Contrary to sections 258(1) and 265 of the Penal Code, Cap 16 R.E. 2019. It was alleged at the trial court that the applicant on different dates of October and November, 2017 at Kiloleli area within Ilemela District in Mwanza Region stole cash a total of Tshs. 39,000,000/= the property of one Magreth D/O Minan Kaijage. On the 14th April, 2022 when the applicant was arraigned before the trial court he pleaded guilty to the charge; "Ni kweli" The trial court entered a Plea of Guilty which was followed by the facts adduced by the learned State Attorney of which the applicant admitted them all as being true and correct. The facts show that the applicant had borrowed the alleged stolen money from the complainant. At first, the complainant gave the applicant Tshs. 20,000,000/=, then she gave himiTsHsT 13,000,000/= and lastly she advanced Tshs. 6,000,000/= making a total of Tshs. 39,000,000/=. The applicant defaulted on payment of the borrowed money, resulting in being arrested and prosecuted for stealing. Thereafter a conviction against the appellant was entered on his own plea of guilty and sentenced to twelve months conditional discharge. He was in addition thereto, ordered to pay the complainant the alleged stolen money within the period of such conditional discharge. It seems the applicant defaulted the order as he did not fully pay the said amount. In that respect the applicant was taken back to the trial court alleged to have contempted the court order for his failure to pay the ordered amount to the complainant. He was remanded for such allegations and forced to pay the requisite money. After a stiff battle between him and the Republic and after he had spent some days in remand custody he was released on bail. Up to this junture, the matter is still pending in the trial court against the applicant on such allegations of contempt of court order. It is upon this historical background the applicant decided to institute this Revision proceedings to have this court intervention in the matter. At the hearing of this Revision, the applicant was represented by Mr. Adam Robert learned advocate and the Respondent/Republic was represented by Mr. George Ngemela and M/S Brenda Mayala learned State Attorneys. For determination of this application, I required the parties to address this court on:- (i) Whether the narrated facts by the learned state attorney disclosed the ingredients of the offence of stealing sufficiently to warrant a conviction against the applicant. Both parties in their respective submissions argued that the facts established a civil claim and not a criminal offence because the applicant did not steal the alleged money but rather borrowed as exhibited by the written contracts between him and the complainant. Mr. Adam Robert learned advocate prayed that the conviction of the applicant be quashed and the sentence set aside. In the circumstances when a plea of guilty is recorded by the trial court against the accused, the facts should follow to explain in a detailed manner on how, when, where and against whom the accused/applicant committed the offence. If the accused admits all the facts which the court considers to be sufficient enough to warrant a conviction, then it is when the court ensures itself that the entered plea of guilt is without ambiguity and the accused has actually intended to plea as such. Thereby a conviction is inevitable. In the instant case, after the applicant having pleaded guilty, the facts were read to him and he admitted them all. Even though the narrated facts disclosed that the applicant had borrowed money from the victim which was given to him in three instalments but did not repay the debt as agreed. The facts do not in any manner establish the ingredients of theft. The cause of action is a Civil Debt and not theft as alleged. The applicant did not steal the alleged money but borrowed it. The loan contracts were entered between the applicant and the complainant through which the money was given to the applicant. It was thus wrong to use a criminal process against the applicant for his failure to comply with the conditions in the loan deed. The facts are therefore short of the requisite ingredients of theft sufficiently to warrant a criminal conviction against the applicant. Not only that but also the mode of execution of the court order was not proper. The applicant was embarrasly arrested and incarcerated for allegations of contempting court order. Failure to pay the compensation ordered by the court in itself does not mean the order is contempted. Execution of compensations ordered in a criminal trial is not done by instituting criminal allegations for contempt of court order. It is done through a Civil process as it was held by the Court of Appeal in the case of Maligile Maingu versus The Republic, Criminal Appeal no. 432 of2021, (CA) at Kigoma or through Distress Warrant as provided for in various provisions of the Criminal Procedure Act. Since the conviction of the applicant in this case was not proper I find no reason to dwell into the mode of execution of criminal compensations. In the circumstances that the facts which led to the conviction of the applicant did not disclose the ingredients>afthe offence charged, the plea 4 of the applicant cannot be said to have been unequivocal. It was a plea resulting from a misapprehension of the facts whereas the applicant thought he was pleading the debt while in fact he was trapped into a criminal allegations of theft. Had he been made aware that he was not standing in court for a debt but for stealing he could not have pleaded guilty because he did not steal such money. In no way a civil debt could be turned into a criminal offence. The applicant was thus wrongly convicted and wrongly sentenced. I do hereby allow this revision, quash the conviction and set aside the sentence entered although it has already been served. The compensation order is also set aside. The Victim is directed to invoke Civil remedy against the Applicant if at all she lended the alleged money to the applicant and prove her claim in a civil trial. I call upon trial magistrates to be curious to justice. They should inquire into whatever fact that transpires to them as a detriment to justice. They should not stand as mere observers of litigations before them but as administrators of justice. Had the trial magistrate scrutinized the facts of this case; a criminal verdict could have not been entered because it is plainly on record that what transpired between the applicant and the complainant was just a civil debt and not theft. 5 I wonder how the office of the Director of Public Prosecutions drafted the charge of theft and prosecuted the applicant for theft while in fact the applicant did not steal any amount from the complainant. We need fair criminal justice even for those who are lay persons or those who have no legal representations. The right of appeal to the Court of Appeal of Tanzania isfully explained to whoever becomes aggrieved with this decision./'''" It is so ordered. —x JUDGE 28/10/2024 6