Augustino Mponda vs Republic [1991] TZHC 14 (14 August 1991)


Mchome, J.: The appellant, Augustino Mponda was jointly charged with six others with Burglary and stealing I contrary to section 294 (1) and 265 of the Penal Code respectively. He was found

A guilty and sentenced to four years imprisonment on the first court and two years on the stealing court. All his colleagues were found not guilty and acquitted. Being aggrieved by both convictions and sentence the appellant has preferred this appeal.
B On 14/7/89 one house belonging to SIDO Njombe was broken into and a lot of property stolen therefrom. These included one washing machine, one gas cylinder, one gas cooker, a grinding machine and a washing brush. The total value of the stolen property is TShs. 109,000/-.
On 16/7/89, P.W.I., Detective Constable Edon received information that the stolen property was hidden in the C house of a certain Aderehema Mbilinyi, the original first accused person. With the help of another police detective P.W.I. went to the house and discovered the stolen property. O.W.II Selestine Rwenyagira, the SIDO Estate Manager identified the property as that of his company.
D Both Aderehema and the original 2nd accused person, one Rose Mvile, occupants of the house therein the stolen property was found named the appellant as the one who brought the stolen property into their house at 2.30 a.m. together with some friends of the appellant's.
E Despite the appellant's denial the trial court found him guilty. The learned State Attorney Mr Mbise did not support the conviction. He was right in doing so. For the trial court relied on the evidence of a co-accused without independent corroboration to convict upon. The evidence of D.V.8 cannot be said to be independent as he is the F son and brother of the original 1st and 2nd accused persons respectively and had an interest to save them as they are obviously guilty receivers. The trial Magistrate therefore acted contrary to the provisions of section 33 of the Evidence Act 1967 in convicting the appellant.
G There is no reason why the trial Magistrate acquitted the original 1st and 2nd accused even of the lesser offence of receiving stolen property. The odd hours in which they receive the property, 2.30 a.m., showed they knew or ought to have known the property to be stolen. I can not revise that acquittal here as it will be prejudicial to the H original 1st and 2nd accused persons who have not had opportunity of being heard.
The sentence of four years imprisonment is below the prescribed minimum under the Minimum Sentences Act, 1972. The value of the property stolen is well over Shs. 5,000/=. The trial Magistrate misinterpreted the provisions I of section 172 (2) (c) of the Criminal Procedure Act 1985 which states:

Where ... a person has been in remand custody for a period awaiting his trial; his sentence whether it is under the Minimum A Sentences Act, 198=72 or otherwise, shall start to run when such sentence imposed is confirmed, as the case may be and such sentence shall take into account the period person spent in remand. (The underlining is mine)
Section 172 (2) (c) above quoted does in no way amend the Minimum Sentences Act, 1972. The provisions of B Section 5 of the Minimum Sentences Act, which are applicable to this case are Mandatory. They state: ... the court shall sentence person to imprisonment for a term of not less than five years". C
If the legislature had intended to ammend the Minimum Sentences Act it would have done so under no uncertain terms and included the period an accused has stayed in remand as one of the circumstances in which a court may not apply this Act in Section 6 of Act No. 1/72. D
As there are no uncertain amendments to the Minimum Sentences Act, its mandatory terms have to be interpreted strictly. "Minimum" means "not less than". My interpretation of section 172 (2) (c) of the Criminal Procedure Act E 1985 is that the period an accused has stayed in remand shall be considered together with other mitigating factors while sentencing.
In the case of a scheduled offence under the Minimum Sentence Act, 1972 the period shall be taken into account while deciding what sentence is appropriate between the Minimum and the Maximum. In other words it is to help F the sentencing magistrate or judge on how much above the minimum sentence he should go in sentencing the accused. Going below the prescribed minimum is clearly unlawful.
Otherwise it would be absurd were an accused stays in remand for one year the magistrate deducts one year from G the mandates minimum sentence. And when he stays in remand for five years where the prescribed minimum sentence is five years an accused goes free.
Be that as it may, I allow this appeal, quash the conviction and set aside the sentence, the appellant is to be set free H immediately unless held for some other lawful cause.
Appeal allowed.


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