HENERY TIMOTHEO v REPUBLIC 1984 TLR 168 (HC)

HENERY TIMOTHEO v REPUBLIC 1984 TLR 168 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

July 10, 1984

CRIMINAL APPEAL 4 OF 1984 B

Flynote

Criminal Practice and Procedure - Revision - Revision of sentence for simple theft

enhanced to one of scheduled offence under Minimum Sentences Act 1972 -

Magistrate revised sentence in exercise of revisionary jurisdiction - Revision based on

facts privately obtained by magistrate - Whether irregularity curable. C

-Headnote

The appellant was convicted of simple theft and sentenced accordingly. Subsequently

the proceeding came to the attention of a District Magistrate who purported to revise

and enhance the D sentence on the basis of facts privately gathered by Magistrate

which the appellant had not had an opportunity to deny or accept.

Held:(i) A conviction or sentence can only proceed on the evidence, if there is a full

trial, or on the facts if there is no full trial, stated before the trial court; E

(ii) a subordinate court has no power to review its own decision;

(iii) a sentence imposed in revision is as much appealable as one imposed on

appeal. F

Case Information

Appeal allowed.

No case referred to.

[zJDz]Judgment

Lugakingira, J.: The appellant was before the Primary court at Ulemo in Iramba

district charged with G simple theft (termed "Wizi wa Kawaida" in the charge sheet)

c/s.265 of the Penal Code. It was alleged that on 1.11.83 he stole some items of

clothing worth shs. 656/= the property of an unnamed village shop. He pleaded guilty

to the charge. Facts were then narrated by the complainant one H Jumanne Saidi

and these facts revealed that the clothes were stolen from Jumanne Saidi's house and

there was no mention of any shop or any village. The appellant admitted the facts

and was accordingly convicted as charged and sentenced to six months'

imprisonment. That was on 8.11.83. I

Subsequently, the proceeding came to the attention of the Senior

1984 TLR p169

LUGAKINGIRA J

A District Magistrate at Kiomboi. He thought there was an error in sentencing and

called for the record and proceeded to revise the proceeding. In doing so he

contacted a co-operative officer and learned from him that a village known as

Makunda was registered. He therefore formed the opinion B that the offence was

scheduled. He proceeded to set aside the six-month sentence and substituted

therefore a sentence of three years' imprisonment. The appellant appealed against

that sentence. I allowed the appeal and set aside the three-year sentence and since

the appellant had completed the six-month sentence, I ordered his release from

custody. My reasons for doing so are C set out in this judgment.

A conviction or sentence can only proceed on the evidence, if there is a full trial, or

on the facts, if there is no full trial, stated before the trial court. It cannot proceed on

matters privately sought for D and found by the trial court or a higher court. As

indicated above the facts stated in this case did not reveal the owner of the clothes

other than Jumanne Saidi. There was no mention of any shop and there was no

mention of any village. I think, therefore, that the trial court was justified in

convicting and sentencing the appellant outside the provisions of the Minimum

Sentences Act, E 1972. It was not open to the learned Senior District Magistrate to

alter the sentence on the basis of facts privately obtained by him, which facts the

appellant had not had the opportunity to accept or deny. In fact I do not know how

the Senior District Magistrate came to learn that the clothes F belonged to Makunda

village shop for neither the charge sheet nor the facts on record mention any village.

I only learn that Makunda or Makunde village was the address of the appellant and it

may well be that the Senior District Magistrate launched his investigations on that

clue. In any case, he G acted on private information and by so doing an injustice

was occasioned to the appellant.

I have also noticed a curious and vigorous protest by the Senior District Magistrate.

In his telegram with which he forwarded the records here he states that he cannot

"understand how the appeal can H be entertained by the High Court without first

being dealt with by this (his) court." With respect, that view is erroneous. This was

an appeal against the sentence imposed by him and it certainly was not in his power

to review his own decision. A sentence imposed in revision is as much appealable as a

sentence imposed on appeal. It would have been a different matter if the appellant

had appealed I against the conviction as well. In that case the appeal would indeed

have gone to the District Court and in deciding the appeal the District

1984 TLR p170

Court would not have been precluded from setting the sentence aside if it quashed the

conviction. A But this being an appeal against the sentence only, it was properly

brought to and entertained by this Court.

I allowed the appeal for the reasons first set out above. B

Appeal allowed.

1984 TLR p170

C