Sisya, J.: The appellant appeared before the District Court at Tanga D and pleaded not guilty to a charge of being in possession of property suspected to have been stolen or unlawfully obtained contrary to section 312(1) of the Penal Code as amended by Act No. 26 of 1971. Trial commenced and proceeded on 3.10.79 before E the Resident Magistrate (W.N.B. Kapaya Esq.), Tanga. The witnesses testified on the Prosecution side and then, upon finding that a prima facie case had been made out sufficient to require him to make a defence to the charge, the appellant too gave evidence in his defence. However, he had no witness to call and, consequently, therefore, none gave evidence on his behalf. F
Immediately after the appellant's evidence in defence the learned Resident Magistrate recorded and I quote from the record of proceedings:-
Pros: The accused is a first offender - but these offences are too common. I request for a deterrent sentence as an example. G
Mitigation: I have eight children to support and an ageing mother, I look after them.
These are the usual preliminaries before sentence and indeed, as the record shows, H thereafter, the learned Resident Magistrate proceeded to sentence the appellant to imprisonment for a term of six months. He also made an order for forfeiture of six bundles of beads, Exh Pl, which incidentally, were the offending objects in the matter. No conviction was entered against the appellant before sentence then. However, almost I four months later, i.e. on 30/1/80, the learned Resident Magistrate wrote
a judgment in which he ended up by convicting him, i.e. the appellant, as charged. A
In his petition of appeal which was drawn on his behalf by learned Counsel, Mr. Mramba, the appellant advances three reasons of appeal namely: B
"1. That the learned trial Magistrate erred in law in sentencing the appellant before judgment and conviction.
2. That on the evidence adduced there was no sufficient evidence upon which a conviction could be founded.
3. That the sentence of six months imprisonment was excessive in the circumstances of C the case."
At the hearing of the appeal Mr. Mramba for the appellant, wisely, withdrew the second and third grounds of appeal. However, on the first ground of appeal Mr. Mramba D submitted that in terms of section 210 of the Criminal Procedure Code it was imperative on the learned Resident Magistrate to enter a conviction prior to sentence. This implies the writing and/or delivery of a judgment whose mode of delivery and its contents are laid down in section 170 and 171 of the Criminal Procedure Code, respectively. Mr. Mramba contended that the learned Resident Magistrate did not comply with these E provisions of the Code and therefore the passing of sentence before conviction was unlawful. He, however, left it to the Court to make the necessary orders.
The learned State Attorney, Mr. Mwale, shared the same views with Mr. Mramba for the appellant in this matter and, consequently, he followed suit in leaving it to this Court F to make the necessary orders.
It is convenient at this stage to set out the provisions of Section 210 of the Criminal Procedure Code. They read:
210. The Court having heard both the complainant and the accused person and their G witnesses and evidence shall convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him, or shall dismiss the charge under section 38 of the Penal Code. H
It sounds clear to me from the above that in a criminal case where the trial Court has decided that the accused person is guilty there are two basic elements of "the decision" and these are conviction, and sentence. The former, i.e. conviction, being a pre-requisite to the latter, i.e. sentence. As aforementioned, the learned Resident Magistrate, in the I instant matter, did not enter any conviction prior to sentence. That being so, particularly
because the conviction is a basic element of the decision in the language of section 210 A of the Criminal Procedure Code and a prerequisite to sentence, I do not hesitate to find, which I do, that at the time the appellant was sentenced there was no decision of the Court at all. The sentence that was nevertheless, passed was, therefore, unlawful and it is so declared. The fact that, as aforesaid, the conviction was entered B approximately four months later is immaterial.
Basic and fundamental as this error is I am of the considered opinion that this is not a fit case for invoking provisions of the "curative" section, i.e. section 346 of the Criminal Procedure Code. I may, however, add that the position would, to my mind, have been C completely different had the learned Resident Magistrate entered a conviction or words to the following effect, that is to say "Accused is found guilty and convicted as charged," immediately after the defence case and before the learned Public Prosecutor's plea for a deterrent and exemplary punishment which, itself, is I must say with respect, of dubious legal basis. D
The question that now arises is what order is befitting in this case with regard to the sentence? The answer is simple. In so far as the said sentence has been found and declared to be unlawful the same cannot be allowed to stand and it is accordingly quashed and set aside. I have considered the possibility of remitting this record to the E District Court with directions that the Court now proceeds to pass proper sentence on the appellant. However, I am of the view that that cannot be done without prejudicing the appellant who must have, by now, completed serving the sentence unlawfully passed on him by the trial Court. In the circumstances I am loathe to make any further orders. F
Appeal allowed
G