IN THE COURTOFAPPEALOFTANZANIA
AT MBEYA
(CORAM: KIMARO, l.A., MUGASHA,l.A.rAnd
MZIRAY, l.A.)
CRIMINAL APPEALNO. 579 OF 2015
HAMIDU JUMA ..........•.•.........•.•••...•..•......••..•......•••••••..••.•.••••
APPELLANT
VERSUS
THE REPUBLIC ......••.•.•.•.•...•..•.••.......•.....•••.............••.••...•
RESPONDENT
(Appeal from the decision of the High Court of Tanzania at
Mbeya)
(Lyamuya, - SRM Extended lurisdiction)
dated the
zs" day of April,
2015
in
Criminal Appeal No... 1 of 2015
..................
-:,-
RULING OF THE COURT
20th & 22nd April, 2016
MZIRAY, l. A.:
The appellant herein, Hamidu Juma, was charged in the District
Court of Kyela at Kyela with rape. According to the charge sheet,
the
appellant was charged under s. 130 (1) and (2) (b) and 131 (1) of the
Penal Code, Cap. 16 R.E 2002. It was alleged that on 22nd day of August,
2013 at about 20.00 hrs at Tenende Village within
Kyela District in
Mbeya region the appellant did have unlawful carnal knowledge of one
Amina
dlo Saanane without her consent. According to the evidence, at
the material time the victim was 80 years old.
1
After a full trial in the District Court, the learned trial Magistrate
found that the prosecution had proved its case beyond reasonable
doubt. He then proceeded to sentence the appellant to 30 years term
in jail. His appeal to the High Court was dismissed in its entirety.
Discontented, the appellant has filed this second appeal.
In this appeal the appellant appeared in person, unrepresented
and so he fended for himself. The respondent Republic was represented
by Ms. Catherine Paul assisted by Mr. Ofmedy Mtenga, learned State
Attorneys.
Before hearing the parties on the merit or otherwise of the appeal,
the court "suo motu" wished to hear the parties on whether the trial
court had entered conviction.
Ms. Catherine Paul, learned State Attorney briefly informed the
Court and rightly so that no conviction had been entered. She
accordingly under the circumstances urged us to quash and set aside the
proceedings and the judgment of the first appellate Court and remit the
record to the trial court with direction to enter conviction.
The appellant, on his part, agreed to what was submitted by the
learned State Atto rney.
2
Section 235(1) of the Criminal Procedure Act (CPA) provides:-
"(1) The court, having heard both the complaint and the
accused person and their witnesses and the evidence,
shall convict the accused and pass sentence upon
or make an order against him according to law or shall
acquit him or shall dismiss the charge under section 38
of the Penal Code.rr
[Emphasize Supplied}
Section 235 (1) of the CPA which is couched in mandatory
terms
demands
before
the
trial
subordinate
court
to
enter
conviction
proceeding to deal with the question of sentence. To put it differently a
sentence cannot be passed before entering a conviction.
In
Aman Fungabikasi V. R, Criminal Appeal No. 270 of 2008
(unreported)
the Court said:
lilt was imperative upon the trial District Court to comply
with the provisions of section 235 (1) of the Act by
convicting the appellant after
the Magistrate was
satisfied that the evidence on record established the
prosecution case against him beyond reasonable doubt"
3
In lohnathan Mluguani V. R, Criminal Appeal No. 15 of 2011 the
Court observed;
"Section 235 (1) of the Criminal procedure AcC Cap. 20
R.E 2002 imposes a duty on the trial court to enter
conviction
before
embarking
on
the
question
of
sentence. In otherwords conviction precede sentence.
To put it neater there cannot be as sentence without
conviction '~
Yet, in the case of Khamis Rashid Shabani V. R, Criminal Appeal
No. 184 of 2012 the Court said;
'~n accused for instance, cannot be lawfully sentenced
to any punlsnment, unless and until, he or she has been
duly convicted of a particular offence"
(See also Shabani Iddi lololo and Another V. R, Criminal Appeal No.
200 of 2006 and Deogratius Mlowe V. R, Criminal Appeal No. 269
of 2014 (both unreported).
From the preceding authorities cited, it is ample clear that failure
to enter conviction is a fatal and incurable irregularity.
4
In the case at hand, no conviction was entered in terms of section
235 (1) of the CPA - that means there was no valid judgment
upon
which the High Court could uphold or dismiss the appeal
The learned State Attorney suggested to us that in the light of the
above irregularity
we should direct for the record be remitted to the
District Court so that it enters a conviction. We concur with her.
In the result therefore we
nullify
the proceedings and Judgment
of the Resident Magistrate's Court (Extended Jurisdiction) and direct for
the record be remitted to the trial District Court to enter conviction in
terms of sections 235 (1) of the CPA.
DATED at MBEYA this 21st day of April, 2016.
N. P. KIMARO
JUSTICE OF APPEAL
S. E.A. MUGASHA
JUSTICE OF APPEAL
R. E. MZIRAY
JUSTICE OF APPEAL
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