Deus Kamugisha and Another vs The United Republic (HC Criminal Appeal No. 93 of 1989) [1990] TZHC 52 (10 October 1990)
Judgment
P.FP ELLj..&1I'E JURi SDI CTI ON
HIGH COURT CRIMIN/~~,Ai?J>,E(..L...,.NO. , 9 J OF 1989
(.From original Crimi,.,al case No. 202 of 1989 of the
District court· of Ilala District at Kivukoi)
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.i
DEUS KAMUGISHJ:.. • •·• • • • ••·• .... o •••••.••.•• • ••• FIRST 1-'..PPELLJ.N'T ,..f
(Origial First hCcused
I SMJ..IL Li;. YI .SECON'B ji.PPELL/NT
( Origi.i:1.al. seco·nd Accuse\
, sersus
THE W-TI TED RJ:PUBLI C •,.., • • • o ., •••••••••• e • • RESPO.NDENT
(Origial Prosecutor)
J. U D G M E ?1 T
MSUMI, J.
The_. two appellaZlots, whos.e appeals hav.e beett consolidated,
were joi..,tly convicted with a-nother person of one count of
. robbery with violence. Each of them_.was se:ntenced to JO years
imprisonme11t un.d.er .the Minimum senteR-ces Act. Both of them
are aggrieved with the co!!;victions artd sentences heAce these
appeals.
The allegation against both appellaAts is that on 5th
February, __ 1989 they stole a motor tyre from the vehicle of the
co.mplainant ·o.,..e Mohamed Majungusi ( PWI) • when the comp1aina,:i.t
.. and his.brother tried to r·etri.eve the snid tyre appellants
threatened them with c, knife and stones. _,The .. tyre has not been
recovered sinc.e th.en The £irst appeallant une Deus lC..-\mUgisha
was arrested orl. the :following day while second .... appeJ.lant was
arres·ted some hours later, on the same day of incident •
.• • .•. • • • 0 /2
...
2
Complainant e:n<l h,;o other witnesses vividly identfied the
appellants thereby enabling the police to apprehend them. The
alleged incident hnppened round about 7.00 a.m_. and the wit-ne-
sses, especially the complninant and his brother, had ample
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time with the ppellants when they were trying, unsuceessfully,
to recover the tyre from themo· Not o.u.ly that, both witnesses
claimed thnt they had seen the appellants on many occasions
prior to the incident in question. This fact has bee confirmed
by the appellants themselves when they claimed, in their defence,
that there was bnd blood between them and the two wit11esses.
They claimed thct they once quarrelled with the son of the
complainant. Thus e,S far as the id en tifica tion of both
appellnnts is concerned the case cannot be materially faultedo
The corollary of' this finding is that prosecution has managed
· to discharge its onerous burden of proing the guilt of both
appellants beyond resonable doubt.
In imposing the sentence of thirty years imprisonment
against each appellant, the learned trial magistrate purported
to do so under the provisions of the Minimum sentences Act as
amended by Act Ho. 10 of 1989~ But according to fhe cha.r.ge
sheet the-age of the first appellant Deus Kamugisha is said to
be seventeen yoc:lrs., My brother Judge who admitted this appeal
. observed, intar alit~, l·rhether the first appellant's age wasn't
I
relevant whcm sentencing him. The lgislature, in its chara-
cteristic wisdom, hns spared juveniles, meaning peqple under the
apparent age of eighteen years, fro the rigorous provisions
o-f: the Minimum Sentences J.cto It is thus clear that in this
case the sentencG of'. thirty years imp.r:isonment purported to
have been imposed unc:er the said J,ct is illegal'o
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....
'· r .,.
However, the r0levance of the first apellant
1
s age does
no't end wrth the :fi:nding that he is excluded from the provi-
sions of the r,iinimum Sentences ,".ct. There is still the twin
question of whether or not he is a young person hence he should
be delt with in c.ccordnnce with the provisions of the Children
and Young persons Orcanance Cap .. 13. A young person, according
to this Ordinance, is a person who is twelve years of age or
of
upwards but un(er t:1e age; sixteen years. /nd unless there are
no alternative methods unc1er which a convicted yo'l.lAg person
can be clelt with, section 22 ( 2) of' the Ordinance prohibits
the imposition of custodial sentence on such otf-,_a. --:r-n:·t11e
present case it is not certain whether· or not the f·i:hst appe-
llant is a young persono As pointed out earlier, the c.harge
sheet assert.s that he is seventeen years olcJ while the appella§t
himself in his defence claims to be sixteen years old. In a
borderline case such 3.S this one, it is always advi.sable for the
court to seek for the assistance of medical opinion. With such
expert opinion coupled with the usual searc}:ling observation of
the court, a reasonable estimation of accused age is likely to
be attained. As the me.tter stands now it is doubtful if the
first appellant is ebove the age of a young person.
must be resolved in his favouro
This doubt
But · even if both appellts were of majority i'lge, the
sentence of thirty years imprisonment as the statutory minimum
would not be sustou&blc. This sentence is for o.£f'enders of
armed r0bbery anci I am of the opinion that the present case is
not that of armed robbery. I am of the considered view that the
gravity of the offence of armed robbery arises from the use of
arms which are inherently dangerous to life and limb. Iri other
words to aggrnvate the ·accused conGuct to the status of armed
robbery, the type of nrms used must be intrinsically leathal.
\•
' ..
Among others, this _cntegory of weG1p0!1.S · I' would include all
types of' fire arms, poison arrows and poison spears. Irre-
spective of vnat part of the body is aimed at and the force
appled. the use of. such weapon by it.self is foreseably fatal.
rt is the type of wee.pons ·the use of which would irresistably
lead to an infernce 0£ malice aforethought in the cases of
murder or attempted ::;;ur.:ler., Hence on this reasoning I am
~
reluctant to hold the,t the use of su.
alleged to have been Llrmed with stones and· a knife. Thus it is-
a case of ordinary robbery for which the statutory minimum
sent'ence is fifteen years imprisonment.
Let me comment; nlbeit briefly; ◊n.-corpornl punishment as
part of the stntutory minimum sentences for robbery. ±n the
admission reme-,rk Lu.z;akingira J, seemingly querried the trial
magistrate's omission to impose corporal punishme~t as part of
the minimum sentence. I must admit that at first instinance
I sha:ued his concern. For this reason I was surprised-to note
that whereas J;.ct No. 10 of 1989 provides e.0.hanced terms of
imprisonment plus corporal punishment as Minimum sentences for
the comparalively 1esser offences of attempted robbery and
assault with intent to steal, corporal punishment is not part of
the mandatory minir:1ttrn sentences for the more serious offences
of robbery and armed robbery. h weapons as stones, clubs
and knives in the commission of robbery aggravates the offence
to that of armed rcbberyo In the preset ,case appellqnts ardmittedly part II of the
Corporal. l,?unishmen:t Orc-:inance has been amended by Act uo. 10 of
198§ so thnt robbery and armed robbry are included.in the list
offences which may attract corporal punishment. But the effect
of this amendment· is to make it. legal for courts to impose
corporal punishment' on such ·effen<iers at their discretio"l..
otherwise the mnndatory minimum sentences for these aggravated
offences_ is fifteen years imprisonment for robbery and thirty
years imprisonment for armed robbery. I only h6~~ that this
absurdity is a product of an oveaight dn· the pait of the
legislature.
To the extent wh.nt is stated in.fra, this appeal partly
succeeds and pnrtly fails. Appeal against conviction in respect
of' both appellants ii:3 c1ismissed, except that the CO"t'\Viction o't
armed robbery is hereby substituted to that of orcinary robbery.
The sentences of thirty years imprisonment imposed as th statu-
tory minimum for nrm~o robbery is set asice and each appellant
is sentenced s follows. The first appellant, being a young
person, is senten.GGd to suffer ten strokes of ca-ri.e under the
Corporal Punishment Ordin-:.mce., As for the seco-n d appella..-,t
he is sentenced to .fifteen years impriso11me11t under the Minimum
Senteces Act as amended by Act No. 10 of 1989.
10/10/1990