AT TANGA
(CORAM:
MAKAME,J.A.,MUNUO,J.A., And KAJI,J.A.)
CRIMINAL
APPEAL NO. 67 OF 2005
HAMDANI
MOHAMED………………………….…………….APPELLANT
VERSUS
THE
REPUBLIC………………………………………….…RESPONDENT
(Appeal from
the conviction and sentence of the High Court
of Tanzania
at Tanga)
(Mkwawa J.)
Dated the 22nd
day of October, 2003
in
Criminal
Appeal No. 104 of 2002
………………………..
CORRECTION
OF ERROR
KAJI,
J.A.
In
the District Court of Muheza, in Criminal Case no 368 of 2001, the appellant,
Hamdani Mohamed, together with another accused person, were convicted of two
offences, namely:-
1st
Count: Attempted armed robbery, contrary
to section
287 of the Penal Code, Cap 16.
2nd
Count: Being in unlawful possession of
firearm contrary to sections 4 and 34 (1) of the Arms and Ammunitions Act No 2
of 1991.
They were each sentenced to seven (7)
and fifteen (15) years imprisonment on each count respectively. Sentences were ordered to run
consecutively. On appeal to the High
Court the appellant’s appeal was dismissed for want of merit. Still dissatisfied the appellant preferred
this appeal in the Court.
In
the course of hearing the appeal, the conviction on the 2nd count
was quashed and the sentence thereat was set aside, on the ground that the
appellant was charged and convicted under a law which had not yet come into
force at the material time.
The
Appeal against conviction on the 1st count was dismissed, and the
sentence of seven (7) years imprisonment was set aside and substituted with a
sentence of fifteen (15) years imprisonment.
In
substituting the sentence it was inadvertently recorded that the Court was
guided by the provisions of Section 287 B of the Penal Code. The said section was quoted in extenso. It is this part of the judgment from page
seven (7) sixth line to page eight (8) second line which is hereby corrected
under rule 40 (1) of the Court of Appeal Rules, 1979 to read as follows:-
“Here
we are guided by the provisions of section 287 (2) of the Penal Code, as
amended by Act No. 10 of 1989 which provides as follows:-
Attempted
robbery section 287
(1) Any
person who assaults any person with intent to steal anything, and, at or
immediately after the time of assault, uses or threatens to use actual violence
to any person or property in order to obtain the thing intended to be stolen,
or to prevent or overcome resistance to its being stolen, is guilty of an
offence, and is liable to imprisonment for a term not less than seven years and
not exceeding twenty years, with corporal punishment.
(2)
If the offender is armed
with any dangerous or offensive weapon or instrument, or is in company with one
or more other person or persons, or if at or immediately before or immediately
after the time of the assault, he uses any personal violence to any person, he
is liable to imprisonment for a term of not less than fifteen years and a
maximum of life imprisonment, with corporal punishment.
That being the law, we set aside the sentence of seven
(7) years and substitute with a sentence of fifteen (15) years imprisonment
with twelve (12) strokes”
DATED at DAR ES SALAAM this day of 2007.
L.M.
MAKAME
JUSTICE OF APPEAL
E.N.
MUNUO
JUSTICE OF APPEAL
S.N. KAJI
JUSTICE OF APPEAL
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