DIRECTOR OF PUBLIC PROSECUTIONS v JACKSON MARO KINYIHA AND TWO OTHERS 1984 TLR 33 (HC)

DIRECTOR OF PUBLIC PROSECUTIONS v JACKSON MARO KINYIHA AND TWO OTHERS 1984 TLR 33 (HC)

Court High Court of Tanzania - Mwanza

Judge Munyera J

August 14, 1984

G (PC) CRIMINAL APPEAL 15 OF 1984

Flynote

Criminal Practice and Procedure - Trial before Primary Court - Under s.41(2) of the

Magistrates' Courts Act accused has to be asked before making any plea if he is

satisfied that his trial should be conducted in the H Primary Court. In this case the

accused were asked after they had made their pleas - Whether this occasioned a

failure of justice.

-Headnote

Three respondents were charged jointly and with another before a Primary Court

with robbery. It I was alleged that the respondents together with others attacked the

complainant and his companion and drove away all his cattle. The trial court

unanimously convicted

1984 TLR p34

MUNYERA J

them and sentenced the three respondents to seven years' imprisonment each; the

fourth was found A to be under age and was discharged absolutely. They appealed to

the District Court which quashed their conviction and acquitted them. The Republic

appealed against the order of acquittal in relation to the three respondents.

Held: (i) Non compliance with the provisions of s.41(2) of the Magistrates' Courts Act

was not fatal B for the case could still be transferred to the District Court

notwithstanding that pleas had already been taken;

(ii) there was ample evidence to show that the respondents committed the

offence of robbery C as charged.

Case Information

Appeal allowed.

No case referred to. D

[zJDz]Judgment

Munyera, J.: The three respondents were charged jointly and with another (4th

accused) before Kenyana Primary Court. They were charged with robbery. It was

prosecution's case that on 27/9/82 the complainant (PW.1) was driving a herd of 51

heads of cattle from Kenyana to Buchanchari E Village. He was sending them to his

brother for safe custody. He was being helped by one Machota Nyisaba (P.W.2).

When they arrived at a place called Nyantare a group of about 8 people was sighted.

They were armed with bows and arrows and one of them had a rifle. They attacked

the F complainant and his companion (PW.2). The latter ran into a creek for safety.

The gang drove all the cattle away, which were never recovered. The robbery took

place near Buchanchari Village where the complainant intended to send his cattle. He

reported the matter to the village chairman naming the three respondents and the 4th

accused as among the gangsters. They were arrested and charged as G stated above.

All of them denied that they robbed the complainant. The trial court unanimously

convicted them and sentenced the three respondents to seven (7) years' imprisonment

each. The 4th accused was found to be under age and was discharged absolutely. All

were ordered to pay 51 head H of cattle to the complainant as compensation. They

appealed to the District Court and won. The District Magistrate quashed the

conviction and acquitted all of them. The Republic appealed against the order of

acquittal in relation to the three appellants. The learned counsel for the appellant

argued that the prosecution has amply proved the charge and the District Magistrate's

order of acquittal I was unjustified.

1984 TLR p35

MUNYERA J

A In reading the record I discovered that the learned District Magistrate had two

grounds for reversing the judgment of the trial court; one of law and the other of

facts. With regard to the point of law it was submitted by the respondent's advocate

(at the first appeal) that the provisions of B Section 41(2) of the Magistrates' Court

Act were not complied with because the respondents were asked whether they were

content to have their case tried before the Primary Court and this was done after

their pleas were taken. The counsel argued that the irregularity was fatal and prayed

for a retrial C or if that was uncalled for, an acquittal. It is true the record of the trial

court shows that the respondents first appeared before the court on 26/10/82 and

were called upon to plead. The case was adjourned till 17/11/82. On that day the trial

magistrate wrote "Nimewakumbusha shtaka lao na bado wanakana." Then he wrote

"fungu 41(2) (b) MCA limetekelezwa, washtakiwa wanakubali D kesi isikilizwe na

mahakama ya mwanzo". Obviously the section was complied with after the pleas had

been taken and this offended the provisions of the same section which require that

the election be made before pleas were taken. But I do not see what harm the error

had caused. If the E respondents so elected the case could still be transferred to the

District Court notwithstanding the plea had already been taken. The error did not

occasion a failure of justice and was curable under section 32(2) of the M.C.A.

I now turn to the question of facts. There was evidence of the complainant (PW.1)

and his aider F (PW.2) that they were attacked by a gang and they recognised the

three respondents (and the 4th accused) whom they said they knew very well. The

robbery took place at about 4 p.m. so the conditions were favourable. The learned

District Magistrate called PW1 and PW 2 liars. I do not G know what lies they had

told. The complainant had produced a letter dated 26/9/82 which the Katibu Kata had

written authorising him to move 51 head of cattle from Kenyana na Buchanchari.

These cattle never reached Buchanchari. Were the complainant and his companion

(PW2) telling lies when they said the cattle were stolen on the way? Definitely the

answer is No. The cattle were stolen. If H the District Magistrate thought the

complainant and his companion cooked up the story against the respondents then

there was evidence of an independent witness, Mwiso Matoto (PW4). This witness

put the story very clearly. He said on that day cattle belonging to one Kentunguye

were I stolen from Buchanchari in grazing. The alarm was raised and he and the

respondents joined other people to trace the stolen cattle. They did not find them. On

returning they met two

1984 TLR p36

MUNYERA J

people driving a herd of cattle towards Buchanchari. The alarm men thought those

two men were A thieves but on approaching them they ascertained that they were

innocent people. Despite all contrary advice, the three respondents (and others)

attacked those two men and took away the cattle. Although the witness did not say

who those two men were, clearly it was the complainant and B his companion. The

witness (PW.4) estimates the herd at 50 head or over. The learned District Magistrate

branded this witness a liar as well. Again there was evidence of Robert Nyamhanga

(PW.3) to the effect that on the material day Ketunguye's cattle were stolen and the

three respondents were among the people who responded to the alarm. In the

evening these three C respondents and others returned with many cattle but not the

ones stolen from Katunguye. They drove those cattle towards a place called

Nyamihuru and the cattle vanished. If Ketunguye's cattle which the respondents were

tracking had not been recovered, where did they get the cattle they came with? All

this proved that the complainant had been robbed of his cattle and the robbers were

D the three respondents and others not identified. They were rightly convicted and

the sentence of seven (7) years was the minimum prescribed. The order of

compensation was mandatory. The appeal is allowed. I set aside the District

Magistrate's order of acquittal and restore the conviction recorded E by the trial

court and the sentence imposed. The order of compensation is also restored.

The records of the lower courts to be remitted back. The three respondents to be

arrested and sent back to prison concerned to serve the remaining sentence. F

Appeal allowed. G

1984 TLR p37

A