Court name
High Court of Tanzania

Elias Joakim vs Republic () [1992] TZHC 23 (19 August 1992);

Law report citations
1992 TLR 220 (TZHC)
Media neutral citation
[1992] TZHC 23

Katiti, J.: Indicted and prosecuted, before Shinyanga District Court was Elias s/o Joakim, herein to be called the appellant, facing two counts - House breaking c/s 294 (1) of the Penal Code - and Stealing c/s 265 of the Penal Code Cap. 16. At the end G of the day, the appellant, was found guilty and convicted, as charged and sentenced to two years imprisonment on first count, and five years imprisonment on 2nd count, without ordering the same to run, either, concurrently, or consecutively. However, the H Public Prosecutor, before the above sentence, told the court, that the Appellant had previous convictions - store breaking and stealing c/s 296 (1) of the Penal Code Cap. 16 - Criminal Case No. 94/89, and the appellant in mitigation prayed as follows: I

A I pray for leniency. I pray that, my other sentence I am currently serving, be considered in sentencing me. This is all.
The trial and sentencing magistrate, directed as follows: B
It is further ordered, that as a 2nd offender, and because he was sentenced to six years imprisonment, in the previous conviction, these sentences shall be served consecutively, the resultant effect, being he shall serve a total of seven (7) years imprisonment. C
The appellant aggrieved, has appealed against conviction, contending that the quality and quantity of the evidence, at hand, did not prove the charge preferred beyond reasonable doubt. While the sufficiency and quality of evidence is to be tested, too, to D be visited is the aspect of sentence, that was meted out, or should have been meted out, to the appellant.
The facts of the case, significantly speak for themselves thus. On the morning of 18/7/1989, PW.1 Justina d/o Mazinge, left for work after locking her house. When E she came back at 5 p.m., same day, she was welcomed back by the doors, that were open and ajar. Her count of her properties, disclosed that properties including glasses, plates, spoons, electric iron, handbag, etc. valued at shs 23,885/=, had been stolen therefrom.
The obvious question was, and now, is who broke into this house, and stole. The F Prosecutor, produced PW.2 Zacharia s/o Maganga and PW.4 Kelvin s/o Lumbeli, both aged twelve and seven years of age, respectively, and who after a successful voire dire test, gave evidence on oath. PW.3 Zacharia s/o Maganga, narrating how he saw the G appellant entering the complainants house, at about 2 p.m. has this to say:
The accused that day, came and called Kelvin, who he sent for cigarettes. He gave him money. Kelvin went for cigarettes. When he left, I saw the accused enter Justina's house H by the door leading to the annex rooms. He went and kept for long. About 1/2 an hour, later on, I saw him come out carrying sack full of things, on his shoulders. He came to the place I was, put his luggage down and told me, that, I should tell Kelvin, to keep cigarettes I he had sent for, as he was in hurry, and he could collect them, after he sent his luggage. He wanted to

A take his luggage and go. I told him, see Kelvin was coming from afar.
It is not timely and opportune at this juncture, to hear from PW.4 Kelvin s/o Lumbeli, who picks therefrom, and tells us thus:
B Sometime last week, I remember I saw Elias pass with an empty sack. He went to the direction of the machine. He later came again, and stopped where we had been playing. He stopped there, and asked me to go for cigarettes. When I came back, I found him with a sack, which now was no longer empty, but full of things. When he saw me from a C distance, he put it on the ground, and came running for the cigarettes before he went back for his luggage and he hurriedly vanished away with it.
With this and such evidence, was the defence that, the appellant was at 2 p.m. with D DW.3 Mama Dina, who had invited him for food. However DW.3 while conceding, the appellant went to her, she denied she had invited him for food, and added that he only stayed there, for two minutes. The appellant also added, he had been attending E meeting at the oil mill, which DW.4 Yusufu Leonard the oil mill chief clerk discounted, saying that, the appellant had been sacked as an employee long before 18/7/1989, and could not therefore attend any meeting, and that in any case, there was no such meeting, on that day at all. F
With such evidence, the trial court found PW.2 and PW.4 credible, establishing that it was the appellant, who broke into the complainants dwelling house, and stole, and hence the conviction. The appellant is complainingly attacking the trial Magistrate, for relying on the evidence of children of tender years - PW.2 and PW.4 to convict him. G The appellant seeks, that the evidence by PW.2 Zacharia s/o Maganga and PW.4 Kelvin s/o Lumbeli, be discounted because of their tender ages.
With a lot of respect, what we wish is not always the right thing, or even legal - wishes are not horse rides. The course of action, that has to be taken, as and when a child of H tender years (child of, or, below the apparent age of fourteen years, - see Section 127 (5) of the Evidence Act) has to give evidence, is not just wished, but dictated by Section 127 (2) of the Evidence Act 1967. That is, under the above subsection, a child of tender years may be sworn, if he understands the nature of oath, or may give evidence I unsworn,

if he has sufficient intelligence, and understands the duty of telling the truth, so that it A should in my view follow that, competency in so far as the child of tender years, is concerned, is not a matter of age, but of understanding. And to crown it all, the appellant is worth learning, that the trial Court, may even competently rely on the testimony by a child of tender years, when such child of tender years, has given such B testimony on the side of the prosecution, to convict the accused person, if it is fully satisfied, that the child is telling nothing but the truth, and has warned itself, of the danger of acting on such evidence, in the absence of corroboration. And where a child of tender years, gives evidence sworn after a successful voire dire test, and that he C understands the nature of oath, his evidence so given, is as good as that of an adult, and it is treated that way, and such evidence may only require corroboration, if it is accomplice evidence, or is such evidence which as a matter of practice or requirement of law, corroboration is necessary. D
In this case, PW.2 Zacharia Maganga and PW.4 Kelvin s/ Lumbeli, gave evidence sworn, after a successful voire dire test, that, they knew the nature of oath, and each ones evidence, is as good as that of any adult. If, Justina d/o Mazinge left her house locked, and she came back and found broken into, and goods stolen, and if PW.2 E saw the appellant entering and later coming out with a sack full of things, a sack that was also seen by PW.4, with the appellant's alibi that he had been at the meeting, and or that he had been invited by Mama Dina all denied, and smashed by the appellant's witnesses, the conclusion reached by the trial Magistrate, that it was the appellant who F broke into the house, and stole, is as sound as granite, and gives no room for successful attack. In the final analysis, the convictions on both counts, are upheld.
The last point, to be dealt with in this case, is the aspect of sentence. The trial court, G imposed two years imprisonment, on first count, and five years imprisonment on 2nd count - no more, no less. But there followed another order, that the sentence of six years imprisonment, the appellant was serving upon previous conviction, run consecutively with the above sentence, according to the trial court. "the resultant Heffect being, he shall serve a total of seven years imprisonment." May I say, with attendant due respect, that the above is provokingly attracting comments - first - on the legality of sentence on first count - two - the trial magistrate failure to show whether such sentences shall run concurrently or consecutively with the sentence on second count, and - three - the propriety of ordering sentences based on separate indictments I and trials, to run

consecutively, and - 4 - the arithmetical or additional accuracy. I shall hereunder deal A with each, of the above aspects.
The legality, or illegality, of sentence on the first count cannot pass without corrective comment. It is trite law, under the Minimum Sentences Act. 1972, section 5 that where the value of property obtained during the commission of the scheduled offence, (1st B schedule), exceeds five thousand shillings, the minimum sentence imposable, is five years imprisonment. In this case, the appellant stole property worth Shs. 23,885/=. Similarly, where the accused has a previously been convicted of scheduled offence, in the proceeding five years as the appellant had been, (store - breaking and stealing Cr. C Case No. 94/89) and is subsequently convicted of another scheduled offence, the minimum sentence imposable, is five years imprisonment. It would seem to me, that the appellant was legally and sentence wise, cornered, with neither front, nor rear, through which to escape, the Minimum sentence of five years imprisonment. The illegal D sentence of two years imprisonment is therefore set aside, and five years imprisonment imposed, instead.
Again, the trial Magistrate had left the sentences, on counts (1) and (2) hanging, may be in the parlance, of Section 36 of the Penal Code Cap. 16 "the same to be executed E after the expiration of the former sentence, unless the Court directs, that, it shall be executed concurrently, with the former sentence, or any part thereof, they were to be presumed run consecutively - See Ali Mohamed v R. [1968] HCD No. 63. But the judicial approach has been that, where in an indictment consisting of several, or many counts, the trial court convicts the accused on such several or many counts, it has to F impose and assign each count, that attracted conviction, a separate sentence, and shall indicate therein, whether the sentences are to run concurrently, or consecutively, and not leave them hanging. As it was pertinently observed by the Court of Appeal in the case G of Hussein T. Kabeka and Others [1980] T.L.R. 267 - "A sentencing Court will never go wrong, if on deciding to pass concurrent terms of imprisonment, on an offender, it inflicts sentence on each offence and then directs the sentence so passed to run concurrently, and no more." H
When to decide whether a concurrent, or consecutive sentence, should be imposed is in my view not a gordian know it is not with respect, an inextricable difficulty. The judicial view and approach, on when concurrent sentences, should be ordered, is abundantly and oversupplied in the case law. Citing a few examples, will be as graphic, as will I suffice in my view. In the case of Musa s/o Bakari

v R. [1968] H.C.D. No. 239, it was held that, it was universal practice, in the A absence of good reason to the contrary, to order the sentence for related offences, of house breaking and stealing, to run concurrently, or where the charged counts, attracting convictions, arose out of single transaction, or are part and parcel of the same transaction, or are part and parcel of single plan of campaign concurrent sentences B will be ordered - see Jayantilar Laiji Kara Shah v R. [1968] H.C.D. No. 328, Ray Raphael Lameck v R. [1967] H.C.D. 190 27 and Joseph A. Kashamakula v R. [1970] H.C.D. No. 201, Just to mention a few. Thus, it is the judicial approach, that where in an indictment, consisting several or many counts, that have attracted C convictions, the sentence imposed and assigned to each count, shall be ordered to run concurrently, if such charged offences are related, arose but of single transaction, or are part and parcel of a single plan. That is, without rule, or order, to the contrary, a good working rule is that consecutive sentences, should not be passed for offences arising D out of the same transaction, as the sum total sentence resulting therefrom, may often prove to be too great considering the circumstances of the case. - See R. v Kaktercum [1972] 56 Cr. App. R. 298. In this case, house - breaking and stealing, are so related, and interconnected operationally, that the sentences should have been ordered to run Econcurrently. For obvious reasons therefore, I hereby confirm the sentence on 2nd count, and further order, that the sentences on the two counts, shall run concurrently.
And finally, I verily confess, that I would at this juncture have rested in peace, if it F were not for the trial Magistrate order, that the previous sentence of six years earned, in a different trial, run consecutively, with the present sentence, which is five years imprison, but computing it have the "effect of being, he shall serve a total of seven G (7) years imprisonment". I come, to this aspect, not because the order was made, and it had to be made in view of the appellants prayers for judicial intervention, otherwise the command by the provisions of section 36 of the Penal Code take its course, but more, I come in because, if as the trial Magistrate ordered, the sentences imposed in H different trials, should indeed be served, consecutively, in the parlance of section 36 of the Penal Code - each sentence to be executed after the expiration of the former sentence they add up to eleven years imprisonment. As I understand, consecutive sentences are accumulative, one sentence being served after the other, - they add up I arithmetically. If this be so and I am convicted it is, six years imprisonment earned in the previous trial,

and five years imprisonment earned in this case, served consecutively can only A add-up to eleven years imprisonment, and not seven years imprisonment, as the trial Magistrate erroneously added up. With the correction, the appellant shall serve the two sentence consecutively - eleven years imprisonment. The appeal is dismissed, convictions and sentences upheld. B
Appeal dismissed.

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