Court name
High Court of Tanzania

Emmanuel Kibona & Others vs Republic () [1995] TZHC 20 (10 October 1995);

Law report citations
1995 TLR 241 (TZHC)
Media neutral citation
[1995] TZHC 20
Mchome, J.

Mchome, J:
The three appellants, Emmanuel Kibona, Lugano Stephen and Jane Kapulu, were H jointly charged with two counts, namely, conspiracy to commit an offence contrary to s 384 of the Penal Code, and robbery with violence contrary to ss 285 and 286 of the Penal Code. The count concerns all the three appellants while the second one is against the first and second appellants, Emmanuel and Stephen, respectively, only.
They were all found guilty by the Mbeya District Court (P A I

A Lyimo, RM) on both counts and sentenced to 15 years imprisonment terms on each count. The sentences were ordered to run concurrently.
Being aggrieved they have now appealed here against both convictions and sentences.
B The evidence for the prosecution at the trial was that the complainant, Leina Jiwa, had employed the third appellant, Jane Kapulu, as a house servant. Jane knew the inside of the complainant's house very well. Besides that the third appellant had a boyfriend going by the name of Clemence. She informed her C boyfriend and the other appellants that in the complainant's house was kept a lot of money. So the trio arranged to go and steal that money.
It was on 20 November 1994 at midday when the first and second appellants knocked at the complainant's door. She opened the door for them. They entered leaving Clemence outside. The appellants threatened to kill the complainant with a knife unless she showed them where the money was kept. They cut her hand D partially with the knife. She showed them the money, Shs 2,100,000/= wrapped in a paper bag. They took it but not before the complainant had made an alarm.
E Neighbours came to her aid. One of them was PW2, Godfrey. He entered the house and saw the first two appellants inside. They threatened him with the knife and managed to escape with the bag of money. They jumped the fence and went to the streets. An alarm was made and the appellants were chased. The second F appellant was the first to be arrested. The first appellant ran harder, but eventually was arrested by the mob that has joined in the chase. Before being arrested he threw the bag of money away. The mob picked it but the police retrieved it before they had done much damage to the money.
G When the bag was opened at the police station it was found to have Shs 700,000/= instead of Shs 2,100,000/=.
The appellants were jointly charged. But Clemence has not been apprehended up to now.
Before the police the first and third appellants confessed to have conspired to rob. H
In their defence the first and second appellants alleged they were just passersby when they were arrested and beaten up by the mob at Meta Secondary School grounds. The third appellant after denying being involved at last admitted in court to have arranged the robbery with her boyfriend, Clemence, and the other appellants.
A lot of people saw the appellants, from the complainants house I

to the place where they were arrested. The appellants never disappeared from the A sight of the chasers holding the bag of money until they threw it away to be picked by the mob and the police.
The difference between the amount alleged to have been stolen and that recovered when the bag was picked does not help the appellants either. Some B could have been stolen when the bag was thrown away by the first appellant or the complainant could have been mistaken on the figure. There is no evidence that when she was threatened to surrender the money to the knife-wielding thieves she counted it first.
But with this kind of evidence before it no reasonable tribunal would have found the C appellants not guilty. So their appeals against conviction lack in merit and are hereby dismissed.
Now we come to the appeals against sentences.
The appellants were convicted on the first count and sentenced to fifteen years jail each. This sentence is illegal as the maximum sentence provided under s 384 of D the Penal Code for the offence of conspiracy is seven years' imprisonment.
All three appellants have claimed to be children and young persons and so wrongly sentenced on the second count under the Minimum Sentence Act, 1972. In E sentencing them the learned Trial Resident Magistrate ordered the appellants to be medically examined as to their ages first. The medical report for the first appellant states that he is thirty years old, the second appellant twenty-three years old and the third one eighteen years old. These medical reports have been challenged on appeal and an application for additional evidence as to the appellants' age was made. Despite vehement opposition from the learned State Attorney, I granted this F application. This is because during the time of stating their mitigating factors the appellants stated their ages to be seventeen years, fifteen years and fifteen years respectively. Then the learned Trial Magistrate ordered that the appellants be G examined as to their age. Medical reports were tendered which stated that the appellants' ages were estimated to be about thirty years, twenty-three years and eighteen years respectively. The doctor was not called to state how he arrived at these conclusions, nor were the appellants given the chance to challenge those estimates. The learned Trial Magistrate took these estimates to be correct. In Yusufu Kabonga v R (1), Biron, J (as he then was) held: H
   'However high the medical officer's qualifications and the extent of his experience, I am very far from persuaded that a doctor ... could give a definite assessment in respect of age ... with that degree of I

A    certainty required in a criminal law. Accused to be treated as a minor.'
And in Sangu Saba & Anor v R (2) where even x-rays were used to examine the accused as to his age, the East African Court of Appeal held: B
   'It is so well known as to be within the judicial knowledge of the court that even with the aid of X-rays, age cannot be assessed exactly.'
C And in Francis Mtunguja v R (3) George, CJ (as he then was) held that the High Court may call for additional evidence on appeal to elucidate a matter left vague in the trial court. It is desirable that s 322 of the Criminal Procedure Code be broadly interpreted. He continued: D
   'I thought such additional evidence necessary because although it is possible in my view, on the facts to support the inference drawn by the trial magistrate, it appears to me to be undesirable to decide an important issue as to guilt or innocence on a serious charge on an inference when there could be available records which could help to establish the matter on way or the other ... A first appeal from the subordinate court is in law an appeal by way of E re-hearing. ... If the emphasis is to be on the interest of justice ... there should be little reluctance at the hearing of the first appeal to have as thorough an investigation of the factual situation as may be possible before arriving at its decision should this appear necessary.' F
In this appeal the appellants' parents alleged to have some evidence regarding the appellants' ages. Evidence of a parent is even better that that of a medical doctor as regards that parent's child's age. And additional evidence is as vital in G sentencing as in the trial itself. So I allowed the appellants to bring additional evidence.
For the first appellant, Emmanuel Kibona, his mother, Tukumbukege Kayange, tendered a birth certificate and a baptism certificate. She does not know the year he was born and just says he was born three days after Christmas. The baptism H certificate shows the appellant was born on 23 December 1977. So does the birth certificate. The birth certificate and the affidavit regarding birth were issued after the appellant was convicted with this offence. But the baptism certificate is dated 25 December 1980.
The certificates for the second appellant tendered by his father are baptism certificate, birth certificate and primary school leaving cer- I

tificate. They all state that he was born on 26 December 1979. For the third A appellant was tendered a certificate for birth only issued on 22 March 1995 after she was sentenced in this case. It states that she was born on 20 November 1980.
Save for the baptism certificates the appellants' other certificates were prepared after they were convicted in this case. This casts doubts on their genuineness. But B I find no reason to doubt the genuineness of the baptism certificates. Also by appearance the second and third appellants look younger than what the medical certificates state. They look sixteen or below. So their parent's evidence could be the truth though prepared in suspicious ways after they were convicted, The burden of proof is not that heavy on the defence. The 1st appellant, Emmanuel C Kibona, despite the baptism certificate and the birth certificate, appears to be in is early twenties, not seventeen or thirty. But in the case of Sangu Saba & Another v R (2) cited above, the Court of Appeal for Eastern Africa held that age cannot be assessed accurately the benefit of doubt must be given to the accused. D
In this case therefore I give the appellants the benefit of doubt and hold that the first one was aged seventeen in 1994, the second one 16 and the third one fifteen years old.
Under s 2 of the Minimum Sentences Act 1972 the provisions of the act shall not E apply to a juvenile, and under s 3 of the same act, 'juvenile' means any person under the apparent age of eighteen years.
So the appellants were juveniles when they were sentenced last year. Their sentences are therefore set aside and in their place substituted the following sentences: F
1st count
   (a)   The first appellant is sentenced to two years imprisonment.
   (b)   The second and third appellants who are below sixteen have their sentences reduced such as will result to their immediate release from prison. G
2nd count
   (a)   The first appellant is sentenced to five years imprisonment.
   (b)   The second and third appellants' sentences are reduced so as to result in their immediate release from prison. Sentences for the first appellant to run concurrently. H
In sum therefore the appeals against convictions are dismissed entirely and those against sentence are partly allowed as shown above. I