REPUBLIC v KENNETH KIZITO 1992 TLR 269 (HC)

 

REPUBLIC v KENNETH KIZITO 1992 TLR 269 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mkude J

11 September, 1992

Flynote

Criminal Practice and Procedure - Conviction - Of robbery - Whether in addition a F

conviction of assault causing actual bodily harm is proper - Criminal Procedure Act, s.

300(1)

Criminal Practice and Procedure - Sentencing - Accused below 16 years of age - Law

applicable when sentencing

-Headnote

The accused aged 15 years was charged with and convicted of robbery. The Court G

also found that the accused was guilty of assault causing actual bodily harm by

invoking section 300(i) of the Criminal Procedure Act. The accused was sentenced to

15 years imprisonment for the offence of robbery in accordance with the Minimum

Sentences H Act and six months imprisonment for the offence of assault. The case

file was forwarded to the High Court for revision.

Held: (i) The offence of robbery of which the accused was convicted consisted in I

stealing the money and the use of violence on the victim

1992 TLR p270

MKUDE J

in furtherance of the theft. It was wrong for the trial court to invoke the provisions of

A section 300 (1) of the Criminal Procedure Act, 1985;

(ii) since the accused was below 16 years when he was convicted the learned

District Magistrate erred when he imposed a sentence of fifteen years imprisonment

B under the Minimum Sentences Act, 1972. The applicable law is the Children and

Young Persons Ordinance.

Case Information

Order accordingly.

Kamba, for the republic. C

[zJDz]Judgment

Mkude, J.: Keneth Soul Kizito is a young man aged fifteen in 1990 when he was

arrested an charged with robbery c/s 285 of the Penal Code. He was found guilty as D

charged and sentenced to fifteen years imprisonment on 10/4/91 by the District Court

of Ilala at Kisutu. The court also found the accused guilty of assault causing actual

bodily E harm and sentenced him to six months imprisonment. The court purported

to act under section 300 (1) of the criminal Procedure Act in entering a conviction of

assault causing actual bodily harm as there was evidence that the accused stabbed

P.W.2 with a knife while committing the robbery and stealing Shs.700/= from the

witness.

As the stabbing of P.W.2 was done in order to retain the sum of Shs.700/= the F

accused had stolen one offence only was committed and not two. The offence of

robbery of which the accused was convicted consisted in stealing the money and the

use of violence on the victim in furtherance of the theft. It was therefore wrong for

the trial court to invoke the provisions of section 300 (1) of the Criminal Procedure

Act. That section provides as follows: G

300-(1) when a person is charged with an offence consisting of several

particulars, a combination of some only of which constitutes a complete minor

offence and such combination is proved but the remaining particulars are not proved

he may be convicted of H the minor offence although he was not charged with it.

(emphasis supplied).

It is clear from these provisions that the offence of assault causing actual bodily harm

could stand alone only if the evidence was not sufficient to establish the offence of I

robbery, as for example, where

1992 TLR p271

the offence of theft was not proved. But in the present case there was evidence to A

prove both the theft and the assault in furtherance of the theft. The combination of

these two constitutes the offence of robbery. For these reasons I quash the conviction

of assault causing actual bodily harm and set aside the sentence of six months

imprisonment. B

The offence of robbery was proved and the conviction is well founded. However,

since the accused was below sixteen years when he was convicted the learned District

Magistrate erred when he imposed a sentence of fifteen years imprisonment under

the Minimum Sentences Act, 1972. The applicable law is the children and Young C

Persons Ordinance. In the result the sentence of fifteen years imprisonment is hereby

set aside. The accused/appellant is to be sent back to the District Court of Ilala at

Kisutu for sentence is accordance with the Children and Young Persons Ordinance. It

is so ordered. D

Order accordingly.

1992 TLR p271

E