DIRECTOR OF PUBLIC PROSECUTION VS LENGA OLE SABAYA & 2 OTHERS,Criminal Appeal No 231 of 2022.

DPP appelaed after the high court at Arusha acquitted the supspects and after all.maters the court of appela had this to say:

All the above leaves us with doubts if the actus reus was coupled with the requisite mens rea. It is not humanly possible for robbers to do what they did and take the victims of the very robbery to the Police. We entertain doubts that the respondents masqueraded as agents of the tax collector of the Government and that they were sent there to collect Government revenue. We also entertain doubts that they might have gone thither to inspect money laundering allegations.

 Thus, while there is no evidence to prove the first count, the evidence of PW2 having been expunged, there is no evidence to prove the second and third counts as well as there are doubts if the taking ofTshs. 390,000/= and 15,000/=, if at all, subject of the second  and third counts, was done in the course of armed robbery. 

The use of the guns complained of was not done in furtherance of robbery. In the 

circumstances, no offence of armed robbery was proved. For the avoidance of doubt, the trial court also erred in substituting the offence of gang robbery, for it is not a cognate and minor offence to the offence of armed robbery.

 As rightly put by the appellant, both armed robbery under section 287A of the Penal Code and gang robbery under section 285 (2) of the Penal Code, attract a minimum jail term of thirty years with or without corporal punishment on conviction. In the premises, gang robbery cannot be a cognate and minor offence to armed robbery. 

As we held in Richard Estomihi Kimei (supra), substitution moves from a greater offence to a minor one. Thus, in substituting the conviction of the offence of gang 

robbery for that of armed robbery, the trial court strayed into serious error.

In sum, we do not think the charge was proved, for the evidence led did not prove the offence of armed robbery. Neither did it prove the offence of gang robbery. Though for different reasons, we hold that the High Court did not err in setting the respondents free.

Given the reasons we have assigned, though for different grounds, we have no speck of doubt that the decision of the first appellate Court to set the respondents free, was but sound at law; it cannot be faulted. This appeal stands dismissed.