Kombo Omary v. Republic, Cr app no 211 of 2005 (Robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT  TANGA

(CORAM:  MSOFFE, J. A., KILEO, J. A. And KALEGEYA, J. A.)

CRIMINAL APPEAL No. 211  OF  2005

KOMBO OMARY......................................................APPELLANT

VERSUS

THE REPUBLIC....................................................RESPONDENT

(Appeal from the Judgment of the High Court

of Tanzania at Tanga)

(Mkwawa, J.)

Dated the 13^th day of July, 2005

In

Criminal Appeal No. 81 of 2004

----------

JUDGMENT OF THE COURT

29 June & 10 July 2007

KALEGEYA, J. A.

        This is a second appeal.  The Appellant, Kombo Omary, was  convicted of robbery with  violence c/s 285 and 286 of the Penal Code by the Handeni  District Court and sentenced to 15 years imprisonment.  His appeal to the High Court (Mkwawa, J.) worsened the situation as it was not only dismissed but attracted the setting aside of the 15 years sentence of imprisonment imposed and substituting thereof, a 30 years imprisonment and twelve (12) strokes of corporal punishment.

        Still aggrieved, the appellant is before this Court armed with a memorandum of appeal in which he is complaining that PW1’s  evidence was not corroborated and that there was no evidence of use of a panga.  According to him both the trial Magistrate and the appellate Judge did  not properly assess the evidence including considering the defence case.

        Before us,  the appellant argued his appeal on his own as he was unrepresented while Mr. Mganga, learned State Attorney, represented the Respondent/Republic.

        Arguing his appeal, the appellant simply adopted his memorandum of appeal adding, however, that he was framed up as PW2 is PW1’s grandfather and that though it was alleged that PW1 was picked up from the scene by a person who was riding a motor-cycle it was not proved to which destination he was taken.

        On his part, Mr. Mganga, learned State Attorney, supported the conviction, submitting that the incident took place in broad daylight;

the victim and assailant knew each other, and that though enmity is alleged no grounds thereof were alleged which could lead to PW1 and PW2 telling lies against  the appellant.

        Regarding sentence, seeking support from the decisions of this Court in Ifunda Kisite v Republic, Criminal Appeal No. 47 of 2003; Mwita s/o Sibora v Republic, Criminal Appeal No. 49 of 1996 and Rungu Juma v Republic (1994) T. L.R. 176,  Mr. Mganga submitted that in terms of section 5 (b) (ii) of the Minimum  Sentences Act as amended, robbery perpetrated by a group attracts 30 years imprisonment with corporal punishment as was imposed by the High Court.  He prayed for dismissal of the appeal.

        Having carefully given due scrutiny to the evidence on record; the findings of both the trial Court and the appellate court and the law, we are of the settled view that the appeal is devoid of  merit.

        The prosecution grounded its case on the testimony of three witnesses – PW1 (Bakari Saidi), the victim; PW2 (Yahaya Mnyamisi) an adult aged 68 years and PW3 (Muharami Sudi) a Ward Executive Officer in the area.

       

PW1 deposed that on 3/1/ 2004 at about 4.00 pm as he was going  home returning from the market where he had sold his chicken for shs. 20,000/= the Appellant, in company of two colleagues attacked him and having felled him down took his money and ran away.  He deposed that the Appellant had a knife in his hand and that the incident was witnessed by an oldman, one Yahaya, who advised him not to chase  them but rather to report to the WEO which he did in company of his brother Ally who also happened to turn up at the scene.

        The said Yahaya is PW2 who deposed to have witnessed the incident as both the assailants and the victim were walking ahead of him; that upon seeing him, the appellant whom he knew and who together with colleagues were bending over PW1, ran away; that PW1 was complaining of having been robbed of shs 20,000/=.  This witness testified further that  he advised PW1 not to chase the robbers but to report to WEO instead and that shortly thereafter he asked a motor cyclist who was passing by to give PW1 a lift to the WEO’s office.

        According to this witness the time was about 3.30 pm.

       

PW3 is the WEO.  This witness deposed to have been approached by PW1 on the same day at about 5.00 pm  with a complaint that Kombo Muhogo (Appellant) in company of two other youths, armed with a knife had robbed him of his shs 20,000/=.  PW3 further deposed that PW1 told him how Yahaya had advised him not to follow the youths and how he had secured a motor cycle lift for him for conveyance to his office.

        In his defence, the appellant had put up an alibi although legally it was ineffective as no due notice was given in terms of section 194 (4) of the Criminal Procedure Act.  He claimed to have been at a Hotel whose name he did not disclose, conducting a play known as “Gudugudu” up to 5.00 pm when he went home up to 6.00 pm only to return to his play at 7.30 pm.  He alleged the case was a frame up.

        Both Courts below properly directed themselves and held that there was no question of mistaken identity because the witnesses (PW1 and PW2) and the appellant knew each other and the incident took place in broad day light.  The prosecution witnesses were found credible and the appellant’s story was not believed.

        On our part we find no ground which could make us fault the findings of fact by both Courts below.  This Court time and again has insisted that unless there are misdirections and non-directions on the evidence it will not interfere with findings of fact so made – decisions abound, the Director of Public Prosecutions  v Jaffari Mfaume Kawawa (1980) T.L.R 146, is one among many.

        With the above conclusion, PW1 and PW2 having been found credible, the appellant’s complaints on lack of corroboration regarding PW1’s testimony and alleged lack of proof regarding a panga are thrown asunder.

        In the first place, as the incident took place in broad daylight there was no question of identification and neither do circumstances legally require corroboration.  PW1 deposed to have been robbed by, among others, the appellant, whom he knew and PW2 deposed to have witnessed. PW1 deposed that the appellant had a knife and no other witness named any other weapon let alone a “panga”.  One wonders therefore as to wherefrom the appellant plucked the idea of a “panga”.  It is of his own creation.

        Secondly, even though the appellant claimed having been framed up, his own testimony, by its own contradictions among others, entitled the two Courts below, justifiably, not to believe in whatever he stated.  In the last part of his main deposition the appellant is recorded as having said,

“The prosecution evidence is not truth although I had no conflicts with them.  I have never heard of any conflicts of those witnesses and members of any family.  Yahaya Mnyamisi know (sic) me well, WEO knows me well, I don’t know Bakari Saidi well so I cant tell as to whether he knows me well or not”  (emphasis ours)

Bakari Saidi is PW1.  When it came to cross examination however, which was immediately after the last word of the above quoted paragraph, the same appellant said,

“We have conflicts with Bakari Saidi regarding a woman.”

        One wonders as to how they could conflict over a woman without knowing each other and for that matter, well.

        And even assuming they were indeed engaged in such conflict what reason would he offer for being framed up by PW2, an oldman

of 68 years?  Can his complaint belatedly  projected while arguing his appeal before us of alleged family relationship, as a grand father, soundly stand?  The answer would still be in the negative because the weight was accorded to PW2  not because of his family relationship but his credibility.

        If the appellant’s complaints have anything to do with how the trial Court treated his defence of alibi hatched during his testimony and also seemingly given no attention by the High Court on appeal, we can only say that the Courts were legally so entitled because of the clear wording of section 194 of the Criminal Procedure Act which he never complied with.  The said section in part provides:

“Section 194,

(1)         ...............

(2)         ...............

(3)         ...............

(4)         Where an accused person intends to rely upon an alibi in his defence, he shall give to court and prosecution notice of his intention to rely on such defence before the hearing of the case.

(5)         Where an accused person does not give notice of his intention to rely on the defence of alibi before the hearing of the case, he shall furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed.

(6)         If the accused raises a defence of alibi without having first furnished the prosecution pursuant to this section, the court may in its discretion, accord no weight of any kind to the defence.”

The appellant cannot be heard to complain against effects created by his own failure to comply with the law.

       

All in all therefore we are satisfied that both Courts below were legally justified in finding the appellant guilty of robbery with violence.

       

What about sentence which was enhanced by the High Court?  Again, as rightly submitted by Mr. Mganga, supported by the decisions relied upon, we can comfortably say that the High Court properly exercised its revisional powers to make right which had illegally been meted out by the trial Court.

       

The offence of robbery with violence on which the appellant was convicted was committed on 3/1/2004.  As observed by this Court in Ifunda and Mwita Sibora cases by then the Minimum Sentence Act had already been amended by Act No. 6 of 1994 which

amended section 5 by deleting paragraphs (b) and (b b) and introduced a new paragraph (b) with sub-paragraphs (i) and (ii).  The term robbery with violence was given a wider definition.  For a simple robbery the minimum sentence remained at 15 years imprisonment [s. 5 (b) (i)] but under section 5 (b) (ii),

“if the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more persons, or if at or  immediately after the time of robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to imprisonment for a term of not less than thirty years”

The High Court (Mkwawa, J.) therefore rightly meted a proper sentence which the appellant earned  for himself by his own acts.  He was armed with a knife, he and his colleagues flung the victim (PW1) on the ground and took his money and it was obviously more than one  perpetrator-clear elements captured by section 5 (b) (ii) of the Minimum Sentences Act as amended, and quoted above.

        For reasons we have canvassed above, we dismiss the appeal in its entirety.

DATED at TANGA  this 5^th day of July, 2007.

J. H. MSOFFE

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

L. B. KALEGEYA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

I. P. KITUSI

DEPUTY REGISTRAR

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