Court name
High Court of Tanzania

Mwita Magore vs Republic () [1983] TZHC 47 (28 October 1983);

Law report citations
1983 TLR 173 (TZHC)
Media neutral citation
[1983] TZHC 47

Munyera, J.: The appellant was the second accused before Tarime District Court. He A was charged jointly with another (1st accused) for robbery. It was stated that on 27/10/82 the complainant, one Joseph Nchagwa (PW1); was returning to his village Kwitinyo, from a cattle auction. He was driving his Toyota Pick -up MZF 124. He B passed by his shamba. He saw a herd of cattle grazing in the shamba. He parked his vehicle somewhere. He approached the herdsmen who happened to be the appellant and his co-accused. He protested to them that their cattle were destroying his crops. The two men, armed with pangas, rushed at him. The first accused, with the aid of the C appellant cut the complainant with a panga on his back. The latter fell down. The appellant put his hand in the complainant's pockets and made away with Shs. 12,000/= cash and the ignition key. A passer-by, Mchuma Mwita (PW 3) helped the injured complainant. Finally the appellant (and his co-accused) was arrested and charged. In his D defence he (like his co-accused) denied that he assaulted and robbed the complainant. The learned trial magistrate found that the violence perpetrated on the complainant was not for the purpose of stealing. He acquitted both of them of robbery but convicted them of causing grievous harm c/s 225. He sentenced the appellant to 2 years' imprisonment, E and released his co-accused on a 3 year probation. Both of them were ordered to pay compensation of Shs. 500/= each to the complainant. Hence this appeal.
There was ample evidence to establish that it was the appellant (and his co-accused) F who injured the complainant. The question is whether conviction of causing grievous harm could be substituted for robbery. Without beating about the bush I would say such a substitution is not possible for the simple reason that causing grievous harm is not a cognate minor offence to robbery. A cognate minor offence is the one that forms part of G a series of lesser offences which must be committed in order to complete the major one. Thus in order to commit robbery one must commit two minor offences, assault and stealing. So when a person is tried for robbery assault and stealing are necessarily the subject of the trial and it shall not be unlawful to substitute conviction of either of them H for robbery. But one does not have to cause grievous harm in order to commit robbery. It is not a cognate minor offence to robbery and must be specifically charged. In this case it was not included in the charge and was not the subject of the trial. The appellant was unaware of it and its substitution was bad in law. I set aside the conviction of I grievous

harm and substitute therefore the one of assault c/s 240. I set aside the sentence of 2 A years and substitute therefore the one of 9 months' imprisonment.
The appeal against sentence succeeds to the above extent.
B Order accordingly.

C