Tayai Miseyeki vs Republic (Criminal Appeal No. 60 of 2013) [2013] TZCA 2146 (12 December 2013)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: KIMARO, J.A.. MASSATI. J.A.. And MMILLA. J J U CRIMINAL APPEAL N0.60 OF 2013 TAYAI MISEYEKI...................................................... APPELLANT VERSUS THE REPUBLIC................................ ...................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Moshi) (Makuru. J.) dated 20th February, 2013 in Criminal Appeal No.6 of 2010 JUDGMENT OF THE COURT 4th & 12th December, 2013 KIMARO. J.A.:- Tayai Miseyeki, the appellant, was convicted by the District Court of Hai on the doctrine of recent possession for the offence of armed robbery contrary to section 287A of the Penal Code and was sentenced to 30 years imprisonment. The charge sheet alleged that on the 1s t day of September, 2007 at around 2.00 hours the appellant and another person who was

acquitted stole 53 herds of sheep valued at T. shillings 2,000,000/= the property of the Mountain Side Farm at Olmolog area within the District of Siha in Kilimanjaro Region and used a shotgun to retain the stolen sheep. The evidence that was led to support the charge was that on that night, Shabani Hatibu (PW1), a watchman of the farm, was on duty with two other watchmen, Hazole Mwangapaya, and Ally. They heard gunshots. As they were frightened, they ran away to seek refuge. Later they reported the shooting to their employer, Oliver Saidi Achivo (PW2) the Administrative officer of the farm. PW2 went to the scene of crime later in the company of the watchmen to inspect the sheep boma where he found the sheep scattered in the farm. Upon doing stock taking, he found 1192 sheep instead of 1252. It was in that process that PW2 realized that 53 herds of sheep were missing.

The matter was reported to the police and from the investigation that was carried out by ASP Benedict Mwamazo (PW3),the Officer Commander CID SIHA district, he was informed that there were attempts by the culprits to sell the sheep at Tembo Camp Kitendeni. With the assistance of Samson Elias (PW4) a game scout working with TEMBO camp Kitendeni, PW3 managed to recover 51 herds of sheep on 7th September, 2007 after tracing the sheep by following footprints of animals like goats and sheep. They were recovered at the Kenya side, after exchange of gun shots which left one person dead and the appellant injured on his leg. According to PW3 they found the appellant lying on the ground. There was a thorn fence with the 51 herd of sheep. They took the sheep. The appellant denied in his defence to have been involved in the commission of the offence. He said he was shot on his leg from the back as he was on his way to Lerang'wa to find a tractor for cultivating his shamba.

The trial court was satisfied that the appellant was not identified at the scene of crime but he convicted him on the doctrine of recent possession. In convicting the appellant the trial court remarked as follows. "After a careful consideration o f the evidence given by PW3 and PW4 against the second accused, which I believe as I do not have reasons to disbelieve the same, I am o f settled opinion that the second accused must have been among the bandits who invaded Mountain Side Farm armed with firearm and stole 53 herd o f sheep. I have reached at this conclusion because nothing was said by the 2n d accused as to how he came in possession o f 51 herds o f sheep stolen from Mountain Side Farm. It is in evidence that the 2n d accused was found in Amboseli National Park ready handed with the 51 herds o f sheep stolen from Mountain Side Farm. Moreover, the 2n d accused did not say anything on how he came to know the name o f the bandit who was shot dead by police led by PW3. It is for the above reason that I think, and will be right to import in this case the doctrine o f recent possession

so as to find the 2nd accused the perpetrator o f the offence charged." The learned judge on first appeal sustained the conviction on the same ground. Still dissatisfied, the appellant filed four grounds of appeal challenging the first appellate court for sustaining his conviction. First, he said the charge sheet was defective. Second, he challenged his conviction which was based on a defective charge sheet. Third, he said the doctrine of recent possession was wrongly applied. Fourth, he challenged the first appellate court for basing his conviction on what it called weak defence. Lastly, he complained about violation of his constitutional rights. In support of his grounds of appeal the appellant also filed written submissions elaborating his grounds of appeal. At the hearing of the appeal the appellant appeared in person. He was not defended by an advocate. The Respondent /Republic was

represented by Mr.Haruni Bengi Matagane , learned State Attorney. The appellant had nothing more to say in support of his appeal. He prayed that the Court considers his grounds of appeal and the supporting submissions and allow his appeal. On his part the learned State Attorney supported the appeal. On ground one of the appeal, he agreed that the charge sheet suffered from fatal defect for non- compliance with sections 132 and 135 (a) of the Criminal Procedure Act [CAP 20 R.E.2002]. He said section 287A under which the appellant was charged requires the name of the person against whom force is used to be disclosed. That was not done in this case. For that omission, the learned State Attorney said the charge is defective and cannot be cured by section 388(1) Cap. 20. He cited the case of Musa Mwaikunda V R [2006] T.L.R.387 to support his argument. Traversing the evidence that was led to prove the case by the prosecution witnesses, the learned State Attorney said it was contradictory,

there was no identification of the 51 herds of sheep that were recovered and admitted in court as exhibit. The learned State Attorney said there was no description of identification of the herds of sheep that was given and the tendering of the 51 herds of sheep was done at the scene of crime. However, said the learned State Attorney, there was no evidence to show how the sheep were handed to the complainant before the hearing of the case. He said the witnesses did not give any description of the 51 herds of sheep to distinguish them from those which were not stolen. On the doctrine of recent possession, the learned State Attorney said it was wrongly applied in this case. He prayed that the appeal be allowed. On our part we agree with the learned State Attorney that the charge sheet is defective. The learned State Attorney submitted correctly, that the charge sheet lacks the necessary particulars to enable the appellant to give his defence. The charge sheet had to be drawn in compliance with sections 132 and 135 (a) of the Criminal Procedure Act, and the second schedule of the Act. The sections give the information necessary to be

contained in a charge sheet. That is the name of the accused person, the date, time and place of the commission of the offence, and the particulars of the offence. All the information has to be given in ordinary language. The charge that was drawn in respect of the appellant read as follows: OFFENCE SECTION AND LAW: Armed robbery c/s 287A of the Penal Code Cap 16 as AMM BY ACT NO.4 OF 2004. PARTICULARS OF THE OFFENCE: That Joseph Lormunyoi and Tayai Miseyeki are jointly and together charged on the 1s t day of September 2007 at about 2.00 hours at Mountain side farm Olmolog area within Siha District in Kilimanjaro Region did steal 53 sheep valued at Tshs. 2,000,000/= the property of the mountain side farm and immediately before or after such stealing did use firearm make shotgun so as to retain such property. (Emphasis added) The second schedule to the Criminal Procedure Act, item 8 shows the particulars of the robbery:

A.B; on the ....... day o f ................... in the region of .................. stole a watch and or immediately before or immediately after the time of such stealing did use personal violence on C.D. Looking at the particulars of the charge sheet which was preferred against the appellant as indicated at the beginning of this judgment , compared to the particulars for the offence of robbery as shown in the second schedule, it does not show against whom the shotgun was used for purposes of retaining the sheep that was stolen. That was a serious omission. In every charge there must be a victim of the offence. In this case the sheep that was alleged to have been stolen was alleged to belong to Mountain side farm. That mountain side farm has owners. Since the charge sheet alleged that a shotgun was used to retain the stolen sheep, it was vital for the charge sheet to show against whom that shotgun was used. Because of the omission the charge is defective and cannot be cured by section 388(1) of the Criminal Procedure Act. In the case of Musa Mwaikunda V R (supra) referred to us by the learned State Attorney, the appellant was charged with attempted rape contrary to section 132(1) of

the Penal Code as amended by the Sexual Offences (Special Provisions) Act, No. 4 of 1998. However the charge sheet did not allege that threat was used against the victim of the offence who was aged fifteen years. The Court held: "The charge in this case ought to have disclosed the aspect o f threatening which is an essential element o f the offence o f attempted rape under section 132(2)(a) o f the Penal Code and, in the absence o f such disclosure, the nature o f the case that the appellant faced was not adequately disclosed to him; the charge was therefore defective . " The same situation applies in this case. The charge is defective and the defect is not one which is curable for the reason stated. We also agree with the learned State Attorney that the learned judge on first appeal erred to sustain the conviction on the doctrine of recent possession. The case of Joseph Mkumbwa & Samson Mwakagenda V R , Criminal Appeal No. 94 of 2007 (unreported) cited in the case of Abdi

Mollel @ Mollel Nyangusi & Another Criminal Appeal No. 107 of 2006 (unreported) give conditions necessary to be met before the doctrine of recent possession can apply. The conditions are: "first, that the property was found with the suspect, second, that the property is positively proved to be the property o f the complainant, third, the property was recently stolen from the complainant and lastly the stolen thing constitutes the subject o f the charge against the accused. ...The fact that the accused does not claim to be the owner o f the property does not relieve the prosecution o f their obligation to prove the above elements . " As indicated before the charge sheet was defective. It was wrong for learned judge on first appeal to sustain a conviction based on a charge which lacked the essential ingredient of the offence. All the ingredients necessary for applying the doctrine of recent possession were lacking in this case. In the first place it was not proved that the offence of armed robbery was committed because the charge did not specify against whom the shotgun was used to retain stolen sheep. It was not even established

that the sheep were stolen because there was no description of identification of the sheep that was given. Even at the place where the sheep were said to have been recovered it was not established that the place belonged to the appellant and he was the one who was found in possession of the sheep. The remarks made by the trial court when convicting him show that he was held liable because he mentioned the person who was shot dead at that place. The mere fact that he mentioned the name of the person who died at that place does not prove that he was involved in the commission of the offence. There was no evidence given by the prosecution showing that the appellant was at any time given an opportunity to explain how he came to be in that area. Moreover, he was shot on his leg. The conclusion drawn by PW3 that the sheep belonged to Mountain Side Farm was of his own. What PW4 told the trial court was that it was the l^accused who went to the Tembo Camp Kitendeni looking for buyers of sheep. He clearly said that he did not know the appellant, who was the 2n d accused in the trial court.

For the above deficiencies in the prosecution case, we agree with the learned State Attorney that the appeal has merit. We allow the same, quash the conviction and set aside the sentence. The appellant has to be released from prison forthwith unless he is held there for other lawful purpose. DATED at ARUSHA this 6th day of December, 2013. N.P. KIMARO JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. E.Y. Mkwizu DEPUTY REGISTRAR COURT OF APPEAL