Saidi Abdallah Ndoka vs Republic (High Court Criminal Appeal No. 333 of 1977) [1977] TZHC 296 (30 December 1977)
Judgment
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IN THE HIGH COURT OF TANZANIA
APPELLATE JURISDICTION
. HIGH 'COURT CRIMINAL AePE,\L iWo 333 0P 1977
0.RIGINi,L CRIMINJ;L Cl,JE NOo 136 OF' 1976
OF ,THE D.I3TRICT COUH_T OF Mi\GU DISTlUCT_. l,T .Ml,GU
:S~:~~re ·;:;~ t·JANG.\IE z ESQ.! 12,:tST_RIC'J.:! Mi-;.q;!.rH.i1TE
SAIDI ABDALLhH NDOKh O O O O O O O O o O O O O O o O O o O O o O O O O O O O O O c O said that in all these books, he fou;1d
that the a· O
0
0 O 0°'0 O o O l'.PPELLAN'r
(Original Accused)
versus
THE REPUBLICo O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O o·o o o O O O O O O O .RESPONDENT
(Original Prosecutor)
CHARGE: STEi1LING By a person employed in the Public Service.
c/ss 270 & 265 of th·e_ Penal Code.
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J U D GM ENT
MFA.LILA, J.
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The appellant was at tL.= material time employed as a District
Natural ResourcGs Offlcer at Magu and it was in this capacity that he was
charged with stealing the sum of Sh. 2675/= the property of his employ,:r
the Government of Tanzania" He was convicted and sentenced to five years
imprisonmento The trial Magistrate for9ot that this sentence was subject
to confirmation.
Be that as it may, the officer who checked the accounts at the
appellant's office namely BEfrnARD RWEG,',SIRii. (P.W.4) told the trial Court
that on 16/3/76 he proceeded to Magu for the ;:)Urpose of auditing the books
of the Natural Hesources Officeo The books which he audited were Lice:,ce
and Exchequer Receipt bookso Hipellant had collected and/or received a total of Sh. 2675/=
which was not accounted for. He said that this global figure included the
sum of Sh. 1310/= which had been handed over to the appellant vide Exhi)Jit A
by his Field j·,ssistant CHARLES KUZENZJ-;. (PoWo1)o
In his defence the appellant denied these alle9ations and in purti-
cular he denied rPceiving any money from the Field l,ssistant Charles Kuzcmza,
but in ·his memorandum of appeal he admitted if imnlicitly receiving U10 sum
of Shs o 13 70/= from Kuzenza but he said that this was Kuzenza' s perso;.-ml
moneyo
I must say that this case was very badly investigated and prosccutc:!d.
The auditor Mr. Rwegasira would appear to require extra tuition in arith-
metic. His report and evidence were a jumble of confusion. Apart from
getting all his arithmetic wrong, he did not relate in his evidence th()
receipts in the various books to the perioct the appellant is supposed to
have begun reseiving moneys i.e., the middle of 1975. From his own figures
one.is left wondering how Mr. Rwegasira arrived at the sum of Sho 2675/=o
Mro Rwegasira could not even add correctly the various sums handed to th.
appellant by Charles Kuzenzao The three sums i.e., Sha 300/= on 6/6/75
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Sh. 400/= on 7/6/75, and Sh. 670/= on 14/6/75 cl~arly add up to Sh. 1370/=,
but Mr. Rwegasira <JOt Sho 1310! In the midst of such confusion and L:tck
of skill, I will ignore all the fin,:ings m,:.de by this auditor and concentrate
on the sum of Sho 13 70/= handed to the appellant by Kuzenzao hs remRrkcd
the appellant implicitly ad.mi tted recei vinQ this sum of money from Kuzc:::za
but said that it was not Government money but Kuzenza' s private money.
But he did not say for what pur;Jose ICuzenza ,;ave him this sum of mone::r• In
oo/2
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the circumstances I am satisfied that he appellant received this sum of
money from Kuzenza for him to account it to Government revenues and that h
failed to do soo He must have stolen it ai\d that therefore he should lluv,:
been convicted for stealina · thi's sum of inoneyo Accordingly the conviction ,,-..,
for stealincr the sum o-<: Sh. 2675/= is :oet aside and in its place substituted · _
a convictio~ for stealing the sum oi .Sh. 1370/=. Mr. Magongo who appeard ,,
for the Rei:,ublic SUP,ported the appe),ln,yc: s a:onvicti6n to this exb:nt only.
As to the d that the five year p1.:-ison
sentence was excesii;.entence,Mr. Mgon.go also conced. I agree
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accordingly I set aside the sentence of
five years imprisonrri'ent. and. in its plac substi-tut2 the minimum sent:·!nce of
three years imprisonment.
Deli vercd: at Mwanza this 30th ciay of DECEMBER 1977"
30TH DECEMBER'- 12]7o
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L. MFALILA
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