WAMBURA NYANGO v REPUBLIC 1990 TLR 38 (HC)

 

WAMBURA NYANGO v REPUBLIC 1990 TLR 38 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya, J

D 13 June 1990

Flynote

Criminal Practice and Procedure - Substituted conviction - General rule.

-Headnote

The appellant who was charged with the offence of cattle theft was convicted of using offensive language. The appellant's conviction for the latter offence was allegedly made under section 300 of the Criminal Procedure Act, No. 9 of 1985. On appeal the judge considered the legality of the substituted conviction.

Held: 

(i) The general rule applicable in substituting convictions is that the verdict sought to be substituted for the existing one must be one involving a minor and cognate offence to the offence charged;

(ii) while the offence of using abusive language is minor to the offence of cattle theft it is not cognate.

Case Information

Conviction quashed.

Mbago, for the respondent.

[zJDz]Judgment

Mwalusanya, J.: The appellant Wambura s/o Nyango was charged at Musoma District Court in Mara Region with cattle theft c/s 268 (1) and (3) of the Penal Code Cap. 16. At the end of the trial, the learned trial District I Magistrate substituted a conviction of the offence of using abusive language c/s 89 (1) (a) of the Penal Code Cap 16 for 1990 TLR p39 which the appellant was sentenced to 10 months imprisonment. The appellants' conviction for the latter's offence A was allegedly made under S. 300 of the Criminal Procedure Act No. 9/1985. The appellant is now appealing against conviction and sentence.

The course of action taken by the learned trial District Magistrate was clearly strange and irregular. Very correctly the appellant has drawn attention to the learned trial magistrate the decision of this court in Nathanael s/o Nkulikiye v R. [1982] T.L.R. 129 by Chua J. and I may point out that there are hundreds of similar cases in our High Court Digests. All these cases stand for the proposition of law to the effect that the general rule applicable in C substituting conviction is that the verdict sought to substitute the existing one, must be one involving a minor and cognate offence to the offence charged. It is crystal clear that the offence of using abusive language is minor to the offence of cattle theft but it is not cognate. So the substituted conviction was obviously bad in law. The State Attorney Mr. Mbago was of the same view and did not support the conviction.

In the event the appeal succeeds. The appeal is allowed, the conviction is quashed and the sentence is set aside. The appellant should be released forthwith unless held for any other offence.

Appeal allowed.

1990 TLR p39

F