Kosei Kolesoyi and Amani Kolesoyi v. Republic, Criminal Appeal No. 28 of 2001 (robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: RAMADHANI, C.J.; MUNUO, J.A; And NSEKELA, J.A.)

CRIMINAL APPEAL NO. 43 OF 2004

BETWEEN

1.  KOSEI KOLESOYI @ MBAMBALI  }                       

                                                              }   APPELLANTS

2.  AMANI KOLESOYI @ MBAMBALI }                                  

     AND

THE REPUBLIC       …      RESPONDENT

(An Appeal from the Decision of the High Court of Tanzania, at Dar es Salaam)

(Ihema, J.)

dated the 14^th day of July, 2003

in

Criminal Appeal No. 28 of 2001

…….

JUDGMENT OF THE COURT

25 April & 4 June, 2008

RAMADHANI, C. J.:

On 27/02/2001 the appellants, Kosei and Amani, were convicted on their own plea of guilty to a charge of robbery with violence , contrary with  c/ss 285 and 286 of the Penal Code and were sentenced to serve a term of sentence of fifteen years each.

They appealed to the High Court and IHEMA, J. agreed with the learned State Attorney, Ms. Maganga, and gave the following order on 16/07/2001:

The record to be remitted back to the trial Magistrate at Kilosa to certify that the plea of guilty was unequivocal.  

That was done and the learned trial District Magistrate added some explanation to the original court record which we shall reproduce later.

The record was returned to IHEMA, J. who on 17/04/2003, that is, after 21 months from his earlier order, gave another one:

Hearing on 14/7/2003. Parties to be notified. Further let the DPP be served with copy of proceedings of the Kilosa District Court.

On 14/07/2003 the learned State Attorney, Mr. Mapinduzi, admitted before IHEMA, J. to have received the certification by the District Magistrate that the plea of guilty of the appellants was unequivocal. Mr. Mapinduzi added:

Further perusal of the record indicates that there is no notice of the intention to appeal in terms of section 361(a) of the CPA, 1985. As such the appeal would be incompetent. 

Thereupon the learned Judge struck out the appeal under sections 360(1) and 361(1) of the CPA. This is an appeal from that order.

On three occasions, on 03/07/2007, 24/10/2007 and 30/11/2007, the appeal came up for hearing before this Court but the appellants, who were without counsel, remained silent claiming that they did not understand Kiswahili. This time a translator was obtained and the appeal was heard with Ms. Eveta Mushi, learned State Attorney, representing the respondent/Republic.

Before we get into the merits of the appeal, we have to make one observation. The way IHEMA, J. conducted the matter the first time it was before him was unprecedented.  We do not know under what provision the matter was sent back to the District Magistrate for certification that the plea of guilty was unequivocal. If the High Court had doubts as to the plea it should have ordered a retrial.

We agree that if there was no notice of intention to appeal then there was no appeal before the High Court. However, what beats us is how the record of appeal was prepared and the matter sent to the High Court if there was no such notice. Anyway, we are prepared to take it that that was so and that the appeal was properly struck out. We, therefore, cannot fault the learned judge and this appeal ought to be dismissed in its entirety.        

However, we are of the decided opinion that we ought to use our powers of revision under section 4(2) of the Appellate Jurisdiction Act. The complaints of the appellants are that they did not understand the nature of the proceedings and, therefore, their pleas of guilty were equivocal. We do not think that that claim is entirely unfounded.  

The record of appeal reads as follows:

Court: Charge read over and explained to the accused persons to the language understood by them and asked to plea thereto in Kiswahili.

From that passage it seems to us that “the language understood by them” is different from the language they were asked to plead, that is, Kiswahili. There is no mention in the record of appeal of there being an interpreter as the language the accused persons understand is Kimasai.

But even assuming that they did understand the charges against them, which we hold that they did not, the facts as recorded to have been narrated by the prosecutor leave much to be desired.  The prosecutor stated:

The accused persons admitted that they stole cows. Thus I pray to produce caution statement of the accused persons which they admitted before the Police as Exhibit. That is why they were brought before the court as they stand in dock box. That is all. (The emphasis is ours.)

Three matters stand out from that statement of the prosecutor which he gave to support their conviction. First, assuming that the appellants made a confession in their caution statement, what they owned was that “they stole cows”. The learned District Magistrate’s certification was also to the same effect:

On being asked as to whether they admit the facts as outlined by the prosecution side, the accused replied that we have heard the facts and admit all it is true that they (sic) stole those cows as produced by the prosecution in court as exhibit. As the facts outlined by the prosecution and upon their own admission to the correctness, I find them guilty as charged and convict them under section 228(2) of CPA on their own unequivocal plea of guilty to the charge. (The emphasis is ours.)

So, their pleas were that “they stole those cows” NOT that they committed robbery with violence. At most they could have been taken to have pleaded guilty to a lesser offence of stealing. The plea was not unequivocal. This revision could be disposed off on this ground alone but for the sake of completeness we shall deal with the other two matters.

The second matter is that the learned trial Magistrate ought to have been satisfied that the caution statements were freely given. That was not done. Third, there was no order of the trial Magistrate admitting the caution statements after the prosecutor tendered them though they have been erroneously referred to as Exh. P1.

We are of the decided view that there were no pleas of guilty to the offence of robbery with violence and so, the convictions were unlawful. We, therefore, quash the conviction and set aside the sentences. The appellants have been serving their sentences from 27/02/2001, a total of seven years and two months leave alone the time they had been in remand awaiting trial. We, therefore, are of the decided opinion that an order of a retrial would be prejudicial to the appellants and, so, we order that they be discharged from custody unless they are otherwise lawfully held. It is so ordered.

DATED in DAR ES SALAAM, this 28^th day of May, 2008.

E. N. MUNUO

JUSTICE OF APPEAL

H. R. NSEKELAJUSTICE OF APPEAL

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

(S.A.N. WAMBURA)

REGISTRAR

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