Court name
High Court of Tanzania

Republic vs Naftari Ng'umbi () [1988] TZHC 2 (01 January 1988);

Law report citations
1988 TLR 13 (TZHC)
Media neutral citation
[1988] TZHC 2
Coram
Mroso, J.

  A Mroso, J.: The accused was prosecuted in the Court of Resident Magistrate, Iringa for stealing five head of cattle valued at shillings 50,000/=. That being an economic crime offence it was made triable by that court upon a certificate of the Principal State Attorney, under section 12(3) of the Economic and Organized Crime Control Act, 1984.   B The accused was duly convicted and was sentenced to 12 years imprisonment by Mr. Kajeri, Senior Resident Magistrate. He does not appear to have filed any appeal. During routine examination of the returns from the Court of Resident Magistrate, Iringa the record in respect of this case was called for inspection. Upon inspection it was ordered   C that a revision record be opened, to consider whether the learned Senior Resident Magistrate was competent to award the sentence of twelve years imprisonment on the accused.
  D During the revision proceedings Mr. Lundu, learned state attorney, submitted that the learned senior resident magistrate was empowered by section 170 of the Criminal Procedure Act, 1985 to impose that sentence, because it is provided in a saving under subsection (2) of that section that the section "does not apply in respect of any sentence   E passed by a senior resident magistrate of any grade or rank".
What the learned State Attorney is saying, in other words, is that a resident magistrate of or above the rank of Senior resident magistrate has the same sentencing powers as the High Court, and that is the import of the saving in section 170(2) of the Criminal   F Procedure Act, 1985.
Section 166 of the Criminal Procedure Act, 1985 provides for the sentencing powers of the High Court. It says that the High Court may pass any sentence or make any order authorised by law, (my underlining for emphasis). Does the saving in section 170(2) of   G the Criminal Procedure Act confer on Senior Resident Magistrates the sentencing powers under section 166 of that Act?
It is true that the saving under section 170(2) says that "this section shall not apply in respect of any sentence passed by a Senior Resident Magistrate...." A proviso in section   H 7(2) of the Repealed Criminal Procedure Code, Cap. 20 of the laws, which is the equivalent of the saving in section 170(2) of the Criminal Procedure Act, also appeared to say that section 7 of the Criminal Procedure Code on the sentencing powers of a subordinate Court did not apply "in respect of any sentence passed by a Senior Resident   I Magistrate." So, on a superficial reading of the saving already referred to the learned State Attorney would appear to be right in his submission.

But in fact, with respect, he is wrong.  A
The saving cited above appears immediately after the substantive provisions of subsection (2) of section 170 of the Criminal Procedure Act which stipulates:
   (2)    Notwithstanding the provisions of subsection (1) - B
      (a)    a sentence of imprisonment
         (i)    for a scheduled offence, which exceeds the minimum terms of imprisonment prescribed in respect of it by the Minimum Sentences Act, 1972;
         (ii)   for any other offence, which exceeds twelve months; C
      (b)   a sentence of corporal punishment which exceeds twelve strokes;
      (c)   a sentence of a fine or for the payment of money (other than payment of D compensation under the Minimum Sentences Act, 1972) which exceeds six thousand shillings; shall not be carried into effect, executed or levied until the record of the case, or a certified copy of it, has been transmitted to the High Court and the sentence or order has been confirmed by a Judge. E
Then follows the saving.
It is quite clear, and logically so, that the saving relates to the provisions of subsection (2), and not to the whole of section 170.
In subsection (1) of section 170 it is stated and I quote for ease of reference:-  F
   170 (1) A subordinate Court may, in the cases in which such sentences are authorized by law, pass the following sentences - G
   (a)    imprisonment for a term not exceeding five years; save that where a court convicts a person for a scheduled offence, it may, if such sentence is authorized by law, pass a H sentence of imprisonment for such offence for a term not exceeding eight years;
   (b)   a fine not exceeding twenty thousand shillings;
   (c)   subject to the provisions of the Corporal Punishment Ordinance, corporal punishment. (My underlining for      emphasis). I

  A What this means is that a subordinate court (unless it has indented jurisdiction under section 173 of the Criminal Procedure Act) whether held by a District Magistrate, a resident magistrate, a senior resident magistrate or a Principal Resident Magistrate, cannot impose a sentence of more than five years imprisonment for a non-scheduled   B offence, or more than eight years imprisonment for a scheduled offence. However, even though all District Magistrates and all Resident Magistrates are empowered to impose the sentences cited above, a sentence of imprisonment which exceeds 12 months, for a non-scheduled offence, and the minimum sentence, for a scheduled offence, shall need   C confirmation by a Judge, unless the sentences are passed by a resident magistrate who is of or above the rank of Senior Resident Magistrate. The word "section" in both the proviso to section (7(2) of the Repealed Criminal Procedure Code and the saving in subsection (2) of Section 170 of the Criminal Procedure Act, 1985 was a drafting   D inadvertence. The correct word which was intended by the legislature is "Subsection". The legislature could not have intended to confer on Senior Resident Magistrates and resident magistrates above such rank High Court sentencing powers so casually.
  E I have not been able (from our resources here) to find much discussion on the sentencing powers of Senior Resident Magistrates. However, I am in a way supported on the views I have expressed above by a decision of Makame, Ag. J. - as he then was - in the case of Yusuf s/o Issa v R. [1970] H.C.D. n. 275. The appellant in that case, who   F had been convicted by the subordinate court on two counts of robbery contrary to sections 285 and 286 of the Penal Code, was sentenced to three years imprisonment on one count and four years imprisonment on the second count, the sentences to run concurrently, plus 24 strokes of corporal punishment. He appealed to the High Court   G against sentence only. On appeal Makame, Ag. J. held:
   The Criminal Procedure Code (Amendment) Act 1963 notes after the new Seventh Schedule that the old sections 7, 8 and 9 of the Criminal Procedure Code are amended so that among H other things, a subordinate court may pass (a sentence of) up to five years for a scheduled offence, (this must have been before the passing of Act No. 2 of 1972) but:
   "Notwithstanding the provisions of subsection (1) of this section, a sentence of imprisonment I for a scheduled offence which exceeds the minimum terms of imprisonment prescribed

   in relation to that offence by subsection (2) of section 4 of the Minimum Sentences Act 1963 by A more than six months ..... etc. (unless it is awarded by a senior resident magistrate) shall not be carried into effect ... etc. unless the sentence or order has been confirmed by the High Court".
   The trial magistrate in this case was not a senior resident magistrate .... The maximum term B the trial magistrate could impose without confirmation, therefore, was .... (My underlining).
What is being said by Makame, Ag. J. (as he then was) is that the proviso to section 7(2)  C of the repealed Criminal Procedure Code on what does not apply to a senior resident magistrate is the requirement for confirmation of certain sentences passed by the subordinate court, not that the whole of section 7 of the Criminal Procedure Code did  D not apply to senior resident magistrates.
Another comment on the sentencing powers of a subordinate court can be found in A Handbook on Sentencing by Brian Slattery, published by the Faculty of Law of the University of Dar es Salaam, Tanzania in 1970. At page 1 of the book Slattery said:  E
   the power of District and Primary Courts to impose particular sentences is sharply restricted by contrast with the High Court, which alone has jurisdiction to sentence up to the full limits specified above (a list had been drawn by the author of different offences and their maximum F sentences) (Underlining is mine for emphasis).
So, it has always been the correct view that all District Magistrates and all Resident Magistrates of whatever grade or rank have no power or jurisdiction to impose  G sentences which are higher than as provided in subsection (1) of Section 170 of the Criminal Procedure Act, 1985 and that the saving in subsection (2) of Section 170 relates only to the stipulations contained in that subsection (2).
From the above discussion it follows that the learned Senior Resident Magistrate had no  H power or jurisdiction to impose on the accused the sentence of twelve years imprisonment. At the time of hearing the revision proceedings three days ago I quashed that sentence and set it aside. I substituted thereof a sentence of 8 years imprisonment, which is the highest sentence a subordinate court could impose in the offence of cattle  I theft, even if it were still

  A considered a scheduled offence (which is doubtful, in view of the fact that it has now been listed as an economic offence under Act 13 of 1984).
B Order accordingly.

C