Francis Ngerenyi vs Republic (Criminal Appeal No. 27/97) [1998] TZHC 2412 (11 August 1998)

..... '\ r . IN THE HIGH COURT OF TANZANIA 'AT ARUSHA EXTENDED APPELLATE JURISDICTION . CRIMINAL APPEAL NQ. 27 /97( c/f H/C, · .. qRIMINAL APPEAL NO. S2/9J,· 7 &_,5 FRANCIS NGERENYI ••• ••• ••• ••• • •• • •• APPELLANT

• Versus - • THE REPUBLIC... ••·• ,. -· ., .. ••• •.•·• .. •.•• ..J• t.. ••• · RESEONOEN'l'

J U D G E .M · E .. N T W.N.B, KAPAYA, PRM -EXT. JURIS: ··' . I"' Before Aru.sha Resident Magistrates' Court ·(S.V.LuembMO .Esq; RM) th,e three appellants, Francis Ngerenyi, Shadraek Saitobah ,.., . . ' \ . ,,,. , .. ... . .. r and Peter Emmanuel were_ jointly charged with robbery with "lio-lenee ·. ·; ' I , , c/ss 285 .and 286- of. the Penal Cede., In the same charge was an -< . alternative count of neglect :to ·prevent a felony c;/s 383 of the· Penal Cod,.·. This rea.te_d to Francis Nge!'eDJi and Shadrack Saitabah. At the end of the trial the co'drt made no finding ·on the robbery c·ount in respect of Fran•cis Ngerenyi and Shadraek Saitabah. It homer found Peter Emmanu&l guilty" of that offenee. Francis Ngerenyi and Shadrack, Saitobah were found guilty in the .al.terna.ti·ve count. The appellants Francis Ngerenyi't Shadra.,k Saitabah and Peter I .Emmanuel were rf'.erred to as the t'irst, second and third accused. .. ' , persons respectively, dui;-ing trial. . '( Come sentencing. The ' ' . .. sentencing process was handled. in~ manner which, with unfeigned ' , ', - ; respect to the learned trial magi$tr11te, lef•,.a lot to be delivere~. To appreciate what I am leading t. let me, for the sake of clarity., · . , . reltroduce from the handwritten s~r.ipt ~hat por~~on of the judgment that·relate to sentencing:- ' . . /2 •·••···· - \ \ J • i l , ·' ' '' ' ' \ • . t J

I·, 2 ... S.entence I have considered the submi,ssiorl .ui allocutus .and have come to a lusion that the lst count : · the 1st accused serve. 8 years 2nd count: '2nd and 3rd accused 2 yers. It is so ordered. . 'R/ A .explained (Sgd) S. V. Luambano ~ 28.7.97 ·(Sgd) S. V. Luambano RW• • f It is described from thit; di&caurse ±.hat io Ngerenyi was sentenced for an offence he was not convicted of. P.alJ' Peter Emmanuel does not appear to have been sentenced. tor the ro't/bery charge. Granted, for the sake of argument, that "2nd accusedit ljllder 211d cou was ut a slip of the pen, tht if was . • J . meant to refer to the 3rd accused, still that argument does not carry us far becaus~ the 3rd accused was never convicted of. let alone charged 6'1ith'the second count. But what·· actually happened, I am no.i referring to the commitment warrants, was that Francis \ Ngerenyi was senten?ed to eight (8) years 9 impri~nment fqr robbery with yiolence e/ss 285 and 286 of the Penal Code while Shadrack • , Saitabah and Peier Emmanuel,were each sentenced to two (2) years' ,imprisonment, also for rob15ery with violence c/ss 285 and 286 of the Penal Code. It is clear then• that the findings in the fud,gement are 1ef·variance not only with tb.e mode of sentencing but with ·the ' . ' . ..' pattern of sentencing as well. I will revert to this anomaly ; after considering- the merits of the ·appeal. . ' .... .. /3 ' - \

./ ' r , ' .i...· . , .. 3 - • . . ... ., There are .infact three appeal.s; that is erimimu appeal ,• . . . . ; ,- . . . <--- . ___ ij9. 27/97 in respect of Francis ·Ngerenyi 1 criminal appeal No. • • . • • ii, 1~ · •, I ' • 28/97 in respec:f: o-r--P&t-e~ ~~uel · and i!riminal al. ~ ..•.. ·--- relating to Shadrack Sai tabah. I The three appeals· have be-en . ! ,. . . . cnsolideted for;· the sake ,of eomr.en'ie.n.ce and I will r ..t-o .the . appellants as t}f.(! 1st, 2nd and 3rd, in the order their appeals - are numbered. ' The facts As revealed: by t1:l,e d show th8t lard Ki (PWl) is eiiiploy~ as a cashier by. Sung flag (T) Limited. Around 11, ' . ,. ).'!. 6.,;o a.m. on 23.11!.95 he took mony in a bag from his office and •, ·•·., . ~ ' -· . pt"Qcee4ed towarp•·the weavig secion in the Company premises to pay end of month 11t3.laris·to employees who were about to leave after( the niatt .1ft. · The 1 1st ·~ 3rd appellants at"e ..empl~ ~ . . guards in the. &o,atny and llt tho m&terial time each of them was 'i ' ' ~ I •· of hs respecrt"Ve 9'lace of •guar~~ · · As .PWl. ~~~ with the mo_trom the cash office towards the • I paying poillt -~ was ~~cosfd by t\ )'e:rson he identified as the ' ·. 2 ' ·. . 1 \ I , ,· 2nd appellant. ti.ii man ll.it him '4t an iron rod on the head and . ; ' . : t move for the bt..9g. J>Wl ha. a fil"q'l i at:i.Jl on the bag. AA alarm was ·:,·, I ., ., ', •• ; raised a,i1d·sever~ eople 1 went i • of PWL. Two of these,. • ' • I ,;. James 2Jialioo.do..> (;WIII) t\nd Leo.ti- -,lwenga · (PWIV) eame face to fa¢e ~ • f , J) I ..... • • with the 2nd appellatit • e ·let go. t i11e bag and took to his 4ee1s. '· M • • I He was followed but .lie.nege to jurtlP:OVer the company fence and . \ I I, . disapeared into oblivion. \ He. ~~s[ flrehended a •ouJll,e of days later. \ \ At the identificatioj psrade &ll,at was mounted PWs l,III and IV.bad .no qualms in picking~nd a;;>P¥ant. fte was in. fact a eommo2; .,sight at the CQmpany. \ . ! ·:l/he previous day PWIV had spt,t him at: the 'company canten p~tok,j.ne/ of a ·soit drink. This is I . \ • • • . \ ,1 't i .. .;

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• '. 4 to mention the other occations _PWIII and PWIV had sighted him in the company 'premise,s, sometimes in. the company of the let appellant. EvideiJfe-·rev.eals that in the ours~ of the encounter between 2nd appe112Ilt and PWl. the money bag was torn and some money spilt on the gro,l!-nP~ It . was counted, and out·:of the lot PWl carried Shs. 25,600:00 was :found missing~ The 2nd appellant raied an aij,bi in his- -def.ei:ip:e- c-te:ad that at the •time of the incident he we$ with Tafion Stole (BWIV) • This witness denied ever beillg with tl11J nd appellant. On the i .r:·<< )'?: ..• basis of the tstimony ,of PWJ'., PWIII aJ¥1 PWIV ~ t,aking intc t:rCCount l that the.alibi crumble{l tte 2pd- appellaat's appeal'against .oomrici; for robbery- is clearly devoid. of merit. · '• • : • I • j . ' The case agait the lat and 3rtt t.pPtliants proceeded on , I the foot.ing; that as th•y <Ud nt go in aid. of PWl when the alarm . . • • I ", *s ·raised; they faiJ,.e(l t9 prevnt the cot'1J\ssion o'f the robbery. I . . . . ' \ Itis claimed by the TOftution: that ct' t~.nature of their calling • • I l they were supposed to h&\TI gone tll aid ¢·9vJl.• That may very well .I, I ( ) be so but it is in evid'jriee that lt the time of the attack eech of them was checking ; I busy at his p0$t • The l:llt appellant aas at the main gate ' I .. • I ' . employees as thby swarmed out, The 3rd appellant ie aid . ·. . ' ·\ I ; . . . . I '' by PWIV to have been. e.bout 100 metres.away from the scene. Th.el'€ . I , . . is again uncontrverteclievidence }hat the 1st ad-3:rd a_ppellarit.s ,. • • • • , I ! ,. . • i ·• had ~~~-pr;or infoat:i-0~\that tha:t d~: w~ pay'. da:y• Suleman Kassim (DWLl) the compay security offider a.?1 the cashier (PWl) could w-ell ' j • • / ! ·- . I i ---------------,,have . alerted them of t fac.t td- enallle them take extra measure.tS ~ . • .. -, ..... ~ • t .. -! ; ' ,~ ; I · ',,"'t<a possiple i:o.~~dntlike; th Rne that occurred., In tpe .............................. , . I ------------- I • I \ .. I, ••••••• /5

·1 I .. I I \ . 5 premiss the let and 3rd .app.ell.a.nta,J. w,.ct.;i.o,n.g fo,- neglec.t tc, }Wen:t · ~ :felony e/ s ,;8 3 of the Penal Code proceeded on fiimsy evid_ehc~~ Their 81Jpeals against--i.ons. -- ~ ·.;wi, -the . -··--- irregular sent.ens impo$ed n them are quashed. They .sh<lul.d be releasetl fram trison forthwith unless ey be held. there .on some. other lawf4, cause • th t -0! s'.e:rit,.erJ,e.ing :remai P& with the 2nd appellant l'eter uel, · Jn perpertuating the rob'beiy the llant used a let;ol w•un to wit an iron rod. The illegal 11te.n.ge ..,,f two (2) ars:J i:i,sonment as it appear on the commitment 4'/arrant ) is humbly. qu~~d ,md set asid• There is substituted in its place a senteiic q: i:fity (,30) years•. imprisonment, which is the minimum, vide the PV'leiont of section 5_Qf the Minimum Sentences Act, 1971 as amended bJ' _t!~~ lt'itten Law.s (Miscellaneous Amendments) Act, Act .10 of 198. '.Chis sentee s operative ·rrom the date of . \ conviction 97 tt lf!al court. \ ·, \. r . - . \J•. ....__ ... . 1/ . W. N B. IWAY.A PRM .. , FJCT.t. JURIS,. 26/6'98 \ fJeliY:ered - cour~\ this 11th dl;y of Attf1st, 1998 in the pre.sen~ ¢-:! '·.- . ·'·· :, /. . \ ' ; )1's':Ly1o :sii -:'d i;,\the a}>se:ace of t. appellants. -/• :• - \kt...'L~ / :;· \ \ \1 / •• ."•' , · \ W. N. B. KA1U,YJ'.. ' -,\ , _ PRlf - EXT 1 • jURI§, •'·,:;-<:. _ ·,-,:.;:;:;, . .. D ll.8.98 7 At Arusha 11th August, 1998 \

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