Ngekali Mkandi & Tumaini Mleli v. Republic, Criminal Appeal No. 85 of 2004 (armed robbery)

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. 48 OF 2005

BETWEEN

1.  NGEKALI MKANDI  }                     

                                                  } … APPELLANTS

2.  TUMAINI MLELI }                            

     AND

THE REPUBLIC       …      RESPONDENT

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

(Mlay, J.)

dated the 6^th day of December, 2004

in

Criminal Appeal No. 85 of 2004

…….

JUDGMENT OF THE COURT

25 April & 4 June, 2008

RAMADHANI, C. J.:

The appellants, Ngekali Mkandi and Tumaini Mleli, pleaded guilty to a charge of armed robbery c/ss 285 and 286 of the Penal Code and, so, were convicted.  Each was sentenced to serve thirty years in prison. Their appeal to the High Court was dismissed and hence this second appeal.    

On 15/06/2003 at Parakayo Area Gang 39, in Kilosa District, at about 23.00 hours one Robert Mwegoha was going to Morogoro to sell his 38 head of cattle. He was robbed the animals after he was attacked with bush knives and sticks and had to be taken to hospital. The trial District Magistrate of Kilosa made the following entry:

Court:

Charge read over and explained to the accused person to (sic) the language understood by them an asked to plea (sic) there in Kiswahili.

Mr. Mgomba:

A plea of the accuseds in their own words:

1^st accused it is true

2^nd accused it is true

Entered as a plea of guilty to the charge

Insp. Said Sijaona narrated what happened and the following entry was made:

Court: - On being asked as to whether they admit the facts as outlined by the prosecution through an interpreter not (sic) Mgomba the accused replies this (sic) we have heard the facts and admit them all. It is true we attached (sic) the grazer and stole the cows.

As the facts as out lined by the prosecution and upon their own admission to the correctness I find them guilty as charged and they are convicted thereof on their own plea of guilty as to the charge.

In their first appeal the appellants, among other things, disputed their plea of guilty and said that they did not follow the proceedings because they did not understand Kiswahili. The learned State Attorney, Mr. Mapinduzi, pointed out that there was an interpreter. To that the appellants replied that the interpreter did not understand Kimasai and that they had been beaten. MLAY, J., agreeing with the State Attorney, dismissed the appeal and upheld the District Magistrate.  

Before us the appellants were in person while the respondent/Republic was represented by Ms. Eveta Mushi, learned State Attorney, who conceded that the provisions of section 198(1) of the CPA were not followed as the record does not show that the interpreter was sworn before performing his task. Ms Mushi submitted that we should invoke our powers of revision under section 4 of the Appellate Jurisdiction Act whereby we quash the conviction, set aside the sentence and order a retrial.

We agree with the learned State Attorney on the point of the swearing of the interpreter but in addition the facts, as narrated by the prosecution, leave much to be desired. For instance, the incident is said to have taken place at 23.00 hours when normally it would be very dark unless there was full moonlight. One wonders how were the appellants identified and hence arrested. It was not narrated that the appellants were caught with the stolen animals though there was an order that “Exhibit P2 38 cows be returned to Godfrey s/o Adamson”. It is doubtful whether or not there was even a prima facie case.

We agree with the learned State Attorney that by using our powers of revision we quash the conviction and set aside the sentence of thirty years. The Republic may wish to prosecute again the appellants but they should seriously consider the period of four years and ten months the appellants have been serving the sentence meted out to them.

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

A. S. L. RAMADHANI

CHIEF JUSTICE

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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