Court name
High Court of Tanzania

Henery Timotheo vs Republic () [1984] TZHC 22 (10 July 1984);

Law report citations
1984 TLR 168 (TZHC)
Media neutral citation
[1984] TZHC 22

Lugakingira, J.: The appellant was before the Primary court at Ulemo in Iramba district charged with  G simple theft (termed "Wizi wa Kawaida" in the charge sheet) c/s.265 of the Penal Code.  It was alleged that on 1.11.83 he stole some items of clothing worth shs. 656/= the property of an unnamed village shop.  He pleaded guilty to the charge.  Facts were then narrated by the complainant one  H Jumanne Saidi and these facts revealed that the clothes were stolen from Jumanne Saidi's house and there was no mention of any shop or any village.  The appellant admitted the facts and was accordingly convicted as charged and sentenced to six months' imprisonment.  That was on 8.11.83. I
Subsequently, the proceeding came to the attention of the Senior

  A District Magistrate at Kiomboi.  He thought there was an error in sentencing and called for the record and proceeded to revise the proceeding.  In doing so he contacted a co-operative officer and learned from him that a village known as Makunda was registered.  He therefore formed the opinion   B that the offence was scheduled.  He proceeded to set aside the six-month sentence and substituted therefore a sentence of three years' imprisonment.  The appellant appealed against that sentence.  I allowed the appeal and set aside the three-year sentence and since the appellant had completed the six-month sentence, I ordered his release from custody.  My reasons for doing so are   C set out in this judgment.
A conviction or sentence can only proceed on the evidence, if there is a full trial, or on the facts, if there is no full trial, stated before the trial court.  It cannot proceed on matters privately sought for   D and found by the trial court or a higher court.  As indicated above the facts stated in this case did not reveal the owner of the clothes other than Jumanne Saidi.  There was no mention of any shop and there was no mention of any village.  I think, therefore, that the trial court was justified in convicting and sentencing the appellant outside the provisions of the Minimum Sentences Act,   E 1972.  It was not open to the learned Senior District Magistrate to alter the sentence on the basis of facts privately obtained by him, which facts the appellant had not had the opportunity to accept or deny.  In fact I do not know how the Senior District Magistrate came to learn that the clothes   F belonged to Makunda village shop for neither the charge sheet nor the facts on record mention any village.  I only learn that Makunda or Makunde village was the address of the appellant and it may well be that the Senior District Magistrate launched his investigations on that clue.  In any case, he   G acted on private information and by so doing an injustice was occasioned to the appellant.
I have also noticed a curious and vigorous protest by the Senior District Magistrate.  In his telegram with which he forwarded the records here he states that he cannot "understand how the appeal can   H be entertained by the High Court without first being dealt with by this (his) court."  With respect, that view is erroneous.  This was an appeal against the sentence imposed by him and it certainly was not in his power to review his own decision.  A sentence imposed in revision is as much appealable as a sentence imposed on appeal.  It would have been a different matter if the appellant had appealed   I against the conviction as well.  In that case the appeal would indeed have gone to the District Court and in deciding the appeal the District

Court would not have been precluded from setting the sentence aside if it quashed the conviction.   A But this being an appeal against the sentence only, it was properly brought to and entertained by this Court.
I allowed the appeal for the reasons first set out above. B
Appeal allowed.