Saidi Abdallah Ndoka vs Republic (High Court Criminal Appeal No. 333 of 1977) [1977] TZHC 451 (30 December 1977)

I IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURI SDICTION

• . HIGH.COURT CRIMINAL. AiPEAL N00 333 OF 1977 ORIGINAL CRIMINAL CAJE NO0 136 OF 1976 • OF .THE DISTRICT COURT OF MAGU DISTRICT AT .MAGU F3e.oreJ0WJiNGWE 7 .ESQ0DSTRICTM111iGIiTE SAIDI ABDALLAH NDOKA......................... 0 0 0 0 0 0 0 00 0 0 00 0 0 OiPPELrJANT - (Ori(inal Accused) versus THEREPUBLIC0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 00 00 0 0 0 0 0 0 0 0 0 ORESPONDENT (Original Prosecutor) CHARGE: STEALING By a person employed in the Public Service. c/ss 270 & 265 of the Penal Code0 . JUDG T NF/-LILA, J. The appellant was at tha material time employed as a District Natural Resources Offi.cer at Magu and it was in this capacity that he WOS charged with stealing the sum of Sh 0 2675/= the property of his employ':r the Government of Tanzania0 He was convicted and sentenced to five years imprisonment0 The trial Magistrate forgot that this sentence was subject to confirmation 0 Be that as it may, the officer who checked the accounts at the appellant's office namely BERNARD RWEGASIRA (P0W04) told the trial Court that on 16/3/76 he proceeded to Nagu for the purpose of auditing the books of the Natural Resources Office0 The books which he audited were Licence and Exchequer Receipt books0 He said that in all these hooks, he fourid that the appellant had collected and/or received a total of Sh 0 2675/= which was not accounted for0 He said that this global figure included the sum of Sh 0 1310/= which had been handed over to the appellant vide Exhibit A by his Field Assistant CHARLES KUZENZIt (P0W.1)0 In his defence the appellant denied these allegations and in porti cular he denied receiving any money from the Field Assistant Charles Kuzariza, but in his memorandum of appeal he admitted if imnlicitly receiving the sum of Shs 0 1370/= from Kuzenza but he said that this was Kuzenza's personal money0 I must say that this case was very badly investigated and prosecuted. The auditor Mr. Rwegasira would appear to require extra tuition in arith- metic0 His report and evidence were a jumble of confusion0 Apart from getting all his arithmetic wrong, he did not relate in his evidence the receipts in the various books to the period the appellant is supposed to have begun reqeivirig moneys i0e0, the middle of 1975. From his own figures one is left wondering how Mr0 Rwegasira arrived at the sum of Sh 0 2675/= Mr0 Rwegasira could not even add correctly the various sums handed to the appellant by Charles }Kuzenza0 The three sums i.e0, Sh0 300/= on 6/6/75, Sh0 4001= on 7/6/75, and Sh0 6701= on 14/6/75 clearly add up to Sh. 13701=, but Mr0 Rwegasira got Sh0 1310! In the midst of such confusion and lack of skill, I will ignore all the finjings made by this auditor and concentrate on the sum of Sh 0 1370/= handed to the appellant by Kuzeriza0 As remarked the appellant implicitly admitted receiving this sum of money from Kuzonza but said that it was not Government money but Kuzenzas private money0 But he did not say for what purjose Kuzenza gave him this sum of monc'. In

the circumstances I am satisfied that the appellant received this sum of money from Kuzenza for him to account it to Government revenues and that ha failed to do so 0 He must have stolen it and that therefore he should have been convicted for stealincithisüm ofthonéy0 Accordingly the conviction , for stealing the sum o Sh 0 26751= is zet aside and in its place substituteci. a conviction for tealing the sum ol Sh0 13 7O/= Mr 0 Magongo who appeared for the Republic supported the appeiiant S . conviction to this extent only. As to the sntenceMr 0 Magon.go also conceded that the five year prison sentence was excessive. I agree, accordingly I set aside the sentence of five years imprisonmnt. ard .in its plc •süb€titute the minimum sentence of three years imprisonment. Delivered Mwanza this 30th day of DECEMBER 1977. * L. . ,JANZA . L. MFALILA 30TH DECEMBER, 1977. •:. . .. .. •. :..