Joseph Mwamboneke vs Republic (HC Criminal Appeal No. 17 of 1998) [1999] TZHC 314 (19 February 1999)

_t'J03HI , J. AT MBi!,'YA HIGH ·coUHT CRIMINAL APPEAL NO. 17 OF. 1998 (O:riginal.hbeya Distri9t Court Criminal Case No. 797 of 1997 Before~ ,::i.M. Rumanyika - Resident Iv1agistrate) JO.SEPH MWAMBON".GKE APPELLANT Versus 'l'HE REPUBLIC RESPOHDENT JUDGMENT ·-··,.--- 'l'he district court of i'lbeya convicted the appellant, j·oseph l·iwamboneke, of the offence of Stealing by agent, contrary to Section 273(b) of the Penal Code, consequent upon a purported plea of guilty, and sentenced him to four yeaxs imprisonment. The conviction a...vid sentence aggrieved the appellant and, in consequence, his learned advocate, M. lwangole, preferred this appeal, and· argued it before me, in the presence of the l.earned state attorney for the Republic, Mr. i'-1ulokoz,i, 1,;ho declined to resist the appeal. The main ground of complaint averred in the :nemorandwn of a_ppeal and before me is that the plea of the appellant wa.s not unequivocal. \lith respect, I agree with Mr. Mwangole and f 1 ir. i-lulokozi that the plea of the appellant was equivocal .. No plea was taken before -the facts were pre_sente.d On the authorities, this omission could be a valid ground. for nullifying the·proceedings, but I am not. inclined to pursue it. '11he statement of the facts given by ·foe public prosecutor did not disclose come of the es.sentiaJ. ingredients of the offence charged. The appellant was fmtrusted with shs.3,000,000/= by the complainant for purchasing coffee from peasant farmerso It was on 19. 10.97 and ·no time-lirnit was set for the ventur,e. 'fhe appellant was expected to have purchased 31 bags of coffee worth that money, but he purchased 24 bags only worth shs.2,540000/=, and failed to remit back to the complainant the shs.460,000/= balance ch. On 27.10.97 tha .appellant-and 0 the co;i1plainant executed a written agreement (:i:xt P1) in which the appellant adrilitted indebtedness to the complainant and promised to pay him •. But he was •• 0 0 0 • 0 0 • 0 • .. / _.;2

2.- arraigned before the district court for the offence. on 31012.97 which was about 21,/2 months from the day he was entrusted wit!)-. the m6ney. · When c1..sked whether the facts were correct the appellant 0 :i'eplied :_·Yote ni kwelio Nitalmja kulipa fedha hizoa'' 'l'he appellant was then convicted _on those facts ·as supplemented by the agreement (Ext P1). The combined effect of sections.265·ana·273(b) of the Penal Code is to make it an offence if any property v1hich has been entrusted to another for him to retain in safe custody or to apply, pay or deliver for any purpose or to any person the same or any part thereof or any proceeds thereof is ,stolen. A plea of guilty must contain an unequivocal admission of every ingredient necessary to constitute the offence with which the, accused person is charged. 11he Court ;,'I'hat in any case in which a. conviction is likely to proceed on a plea of guilty, Uri ot·hE;:r words, when an admission by' the accused is to be allowed to take the place of the other- wise necessary strict proof of the charge beyond reasonable doubt by the prosecution), it is most desirable not only th?,t eery c_o_nstituent. of the charge should be explained to explai11ed to the accused but that he should be required to admit or deny every constituent and that what he says should be recorded in a form which will satisfy an appeal court that he fully understood.the charge and pleaded guilty to every element of it unequivocally.·; 'l 1 he essential element of the offence under section 273 (b) of the Penal Code, and in all other cases of theft in the Penal Code I is fraudulent taking or conversion. I agree with both learned ad.vacates that the facts of this caEe as pr;esented by the prosecution did not allege or disclose an intention to defauq on the part of the appellant within the meaning of section 158 of the Penal r~odeo ilil that the facts disclosed was civil indebtedness of the appellant tc;i the cornplainant. '.l 1 here was absolutely nothing criminal disclosed in the facts. So the appellant could not be said to.have pleaded guilty to every ingredient of the offence charged unequivocally. 'i'his was clearly the case of a very shortly /3

\lf · delayed execution of a contractual obligation in which the complainant was, in all the circumstances, unduly and inordinately impatient. I accordingly allow the appP.al, quash the conviction, set aside the sentence, and hereby order the jmmediate release of the appellant from prison. I make no order for retrial on account of that this was, as demonstrated, a civil matter, a~d that the appellant has served over one year of his sentenceo B.P. Jvi.OSHI JUDGE. For Appellant: Mr o Mwangol,e, Advocate. For Republic: Mr. Boniface, State .Attorney. I CERTIFY THAT THIS IS A TRUE COPY OF TE.E ORIGINAL.