BONIFACE MBOJE & ANOTHER v REPUBLIC 1991 TLR 156 (HC)

 BONIFACE MBOJE & ANOTHER v REPUBLIC 1991 TLR 156 (HC)

Court High Court of Tanzania - Tabora

Judge Sekule J

18 October, 1991

Flynote

B Criminal Practice and Procedure - Sentencing - Excessive sentence.

-Headnote

On the 18th of October 1988 PW.1 complainant discovered that his carpentry tool

box had been stolen. Some C days later PW.4 came and informed him that the first

appellant together with the person who was the 1st accused was selling carpentry

tools. When PW.1 went he found and identified some of his stolen carpentry tools.

The two suspects were charged. After the close of the prosecution the 1st appellant

pleaded guilty. He was convicted and D sentenced to six years imprisonment. At the

end of the case the 2nd appellant was also convicted. He got the same sentence. The

first appellant appealed against sentence and the second appellant appealed against

both conviction and sentence.

E Held: (i) The sentence of six years imprisonment meted to the first appellant, is

manifestly excessive and for this reason it is reduced to one of three (3) years

imprisonment;

(ii) there was no sufficient evidence to convict the second appellant for the

offence charged;

Case Information

F Order accordingly.

[zJDz]Judgment

Sekule, J.: The two appellants namely Boniface Mboje and Paschal Mrembe

hereinafter to be referred to as the G 1st and 2nd appellant respectively together

with two other person were charged in the District Court of Shinyanga District of the

offence of stealing contrary to section 265 of the Penal Code.

It was alleged that they jointly and together stole an assortment of carpentry tools

belonging to one Doto Shija. The H appellant was the 2nd accused of the trial and

the 2nd appellant was the 4th accused.

The facts of case are briefly that on the 18th of October, 1988, PW.1 Doto Shija

discovered that his carpentry tools box had been stolen and that a couple of days later

one Nkwabi Sanga, PW.4 came and informed him that the 1st I appellant together

with the person who was the 1st accused were selling carpentry tools. PW.1 Doto

Shija went to the place where the appellant was said to be

1991 TLR p157

SEKULE J

selling the carpentry tools. And he found the items they were selling were part of his

stolen tools. And he duly A identified the items.

After the close of the persecution case at the trial, the 1st appellant did change his

plea of not guilty to the charge to that of guilty to the charge.

The change of plea was accepted and the trial court went on to find him guilty as

charged and convicted him B accordingly on his own plea of guilty.

The rest of the 1st Appellant's co-accused proceeded to defend themselves. The 2nd

appellant was at the end convicted. Both appellants were each sentenced to six years

imprisonment. The 1st appellant is now appealing C against sentence.

The 1st appellant has contended in his petition of appeal that as he pleaded guilty and

served the prosecution's time, this factor should have been considered in assessing the

sentence that was to be imposed against him. D

He also claim to have been a first offender and that he is a young person, he seems to

have been 22 years of age at the time of his conviction.

Mr. Bilaro, learned Counsel who appeared for the Republic was of the view that the

sentence was rather excessive. E I agree. The sentence was excessive in the

circumstance of the case. The facts that appellant changed his plea to one of guilty

should have been considered so is the fact that he was a first offender and a young

person.

I am therefore of the considered opinion that this appeal has merits. I would and do

hereby set aside the sentence F that was imposed against the 1st appellant. And I

substitute therefore the sentence of three years imprisonment. It is so ordered.

On the 2nd appellant who is appealing against conviction and sentence, I agree with

the learned State Attorney that G there was no cogent evidence connecting him

with the crime.

He was simply mentioned by his co-accused. This however was not enough to found a

conviction against the 2nd appellant. Section 33 of the Evidence Act, 1967 refers. And

the 3rd accused's statement which implicated the 2nd appellant needed to be also

materially corroborated in the circumstances of the case. As a matter of fact, the trial

H court, appeared to have convicted him simply because he chose to say nothing in

his defence, when the options that were open to him were pointed and explained at

the close of the prosecution case. It is true a court can draw an adverse inference on

an accused's choice of silence. But this alone cannot be a basis of a I

1991 TLR p158

A conviction in the absence of evidence establishing an accused's guilt. The 2nd

appellant's conviction is with respect, therefore not well founded. The appeal is

allowed.

The conviction is quashed and the sentence is set aside. The appellant is to be released

forthwith unless otherwise lawfully held.

B Order accordingly.

1991 TLR p158

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