MICHAEL MAPUNDA v REPUBLIC 1993 TLR 251 (CA)

 MICHAEL MAPUNDA v REPUBLIC 1993 TLR 251 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Lubuva JJA

CRIMINAL APPEAL NO. 118 OF 1993 B

8 November, 1993

(From the conviction of the High Court of Tanzaniaat Arusha, Mushi, J.) C

Flynote

Criminal Practice and Procedure - Sentencing - Minimum Sentence for corrupt

transactions - Sections 5(d) and 4(a) of the Minimum Sentences Act, 1972.

-Headnote

The appellant was convicted by the Resident Magistrate's Court of soliciting and

receiving a bribe of D Shs 1,000/= contrary to s 3(1) of the Prevention of Corruption

Act, 1971, and sentenced to five years imprisonment. His conviction and sentence

were upheld by the High Court. He appealed further.

Held: The minimum sentence for corrupt transactions under s 4(a) of the Minimum

Sentences Act, E 1972, where the amount of money involved does not exceed Shs

5,000/= is three years imprisonment.

Case Information

Appeal against conviction dismissed.

Sentence reduced to three years.

No cases referred to. F

J. Mono, for the Republic.

[zJDz]Judgment

Ramadhani, J.A., read the following considered judgment of the Court: G

The appellant, Michael Mapunda was an inspector with the Municipal Council of

Arusha. He was convicted by the Resident Magistrate's Court of Arusha of two counts

of corrupt transactions c/s 3(1) H of the Prevention of Corruption Act, 1971. The

learned Resident Magistrate found that the appellant solicited and did receive a bribe

of Shs 1,000/=. He was given a custodial sentence of five years for each count to run

concurrently. His appeal to the High Court of Tanzania at Arusha (Mushi J) was

dismissed in its entirety. This is, therefore, his second appeal. I

1993 TLR p252

RAMADHANI JA

A The appellant, just as before the two lower courts, appeared in person while the

respondent Republic was represented by Mr Mono, Principal State Attorney. The

only point of law in this appeal is the legality of the sentence.

The learned Resident Magistrate in passing the sentence said:

B `Accused is sentenced to serve the statutory sentence of five years on each

count . . .'.

He was not mindful of citing the relevant section he relied upon for `the statutory

sentence'. C Unfortunately, the High Court, too, did not address itself to the

sentence. The learned Judge reviewed the evidence, found the conviction aboveboard

and, without a word on the sentence, dismissed the appeal though severity of

the sentence was ground ten of the appeal.

D Section 56(1) of the Economic and Organized Crime Control Act 13 of 1984

provides that all offences contained in the First Schedule to that Act are economic

offences. Bribery and Corruption under the Prevention of Corruption Act 16 of 1991

are mentioned in item 2 of that First Schedule. So the appellant has been convicted of

economic offences the maximum punishment of which is fixed E by s 59(2) of Act 13

of 1984 to be fifteen years. The minimum punishments for such offences are

contained in the Minimum Sentences Act 1 of 1972. Where the amount of money

involved is over Shs 5,000/=, s 5(d) of that Act prescribes a minimum term of

imprisonment for five years. That is F probably what the learned Resident

Magistrate termed `the statutory sentence of five years'. However, that prescription

does not apply to the appellant since the amount he obtained was just Shs 1,000/=. He

falls under the provisions of s 4(a) of the Minimum Sentences Act which says:

G `4. Where any person is, after the date on which this Act comes into

operation, convicted by a court of a schedules offence, whether that offence was

committed before or after such date, the court shall sentence such person to a term of

imprisonment which shall not be less than -

H (a) where the offence is an offence specified in the First Schedule to this

Act, three years;'

Now, the two counts under s 3 of the Prevention of Corruption Act, 1971 of which

the appellant has I been convicted are in item 8 of the First Schedule of the

Minimum Sentences Act, 1972. That is

1993 TLR p253

why we have said that the appellant falls under s 4(a) of the latter Act. The minimum

sentence then A is three years.

We, therefore, agree with Mr Mono that the punishment

awarded were illegal. We set them aside and give a sentence of 3 years imprisonment

for each count and order them to run concurrently. B

The appeal against conviction is dismissed but that against sentence is allowed to the

extent described above. The appellant is to serve a term of three years from 4 March

1992 the date he was first sentenced. It is so ordered. C

1993 TLR p253

D