Daniel Amos Mwasibata vs Republic (Criminal Appeal No 28 of 1999) [2000] TZHC 254 (21 August 2000)

c \c IN THE HIGH COTJR.T OF TANZANIA m T ff '0 * M N JrA CRIMINAL A::E.L NO, 28 OF 1999 (Original CrLriinal Case No.103 of 1998 of the District Court of Rur,we District at Tikuyu) DANIEL AMOS MLSI3ATA. 0 •0O 0 00 * • . APPELLANT VERSUS THE REPUBLIC, 0 ,., 0 0 0 0 .RESPONDENT JUGI'flE NT MACIANJA,J. It was common ground at the trial that the comp1ainant ore Sekela I jande (PW1) is a resident of Mabonde village which is in Rungwe District. She left for Kyela sometime in March, 1997, where she remained until the 26th day of July, that year when her son went to Kre1a to inform her that her house (pW1V a) house had been b'oken into and an assortment of personal effects were stolen ttherefrom. It was then that PT11 trawlied back home to see what had happened and reportea the matter to the Police. As part of the inve stigative process youth in the village were pre ssed to name the thief. One Ntufe Mwakapola responded by naming the appellant. This Ntuf ye Mwakapola did not testify, which leaves the testimony of PWI on this matter credible only to the extent thct the appellant was named as suspect; the rest of her testimony is entirely hearsay to which the trial court ought not to have given any weight. Acting on the information that the complainant received from her source, the aecuseds room was searched in his absence6 He was, according to 1ussa Frank (pW2)'s testimony, which corroborate the appellant 9 s defence, the appe1lants room was search while he . ./2

• 2 was in prison serving a sentence relating to different circumstances' The room in which the ai'pelIant lived in which he lived vias rented from liamisi L!Iatola (pW4) who identified it to those who searched it 0 mdcc d the te stimony of Timoth Mwamisi (PW2) who swore that one .tufigegwe told a village meeting that the appellant was selling personal goods is purely hearsay because the sou±'ce of that information did not testify. What was the evidence on which the ae1lant was convicted The Republic did not suppoxt the oonviction, but Mr. Boniface, learned. State Attorney, did not give reasons why they took that position although he wasiven seven days within which to do so. Evon though the Republic hs said nothing, the evidence•n reco'rd at best establishes a rumour which, in turn, generates suspecion upon which the conviction is founded. For there is entirely no credible evidence that lirks the appelLmt with the crime In the circumstances of this case anyone who knew that the appellrit was in prison would have hid the stolen i5ropertT in his room I am satisfied, therefore that theconviotion is unsound and cannot be allowed to stand. In the result the aieal is allowed, Consequently, the conviction is quashed and the sentence is set aside. Unless 9 therefore, he be further remanded in custody on account of any other lawful axe cuse, he will be sent at liberty upon the District Registrar pronnouncing this judgment on 21st august, 2000. J.i!i. MCKiJA JUDGE 16 8.2000 21/G/2000: Coram: S.A.N. Wambura, PRU (E.J 1 ) .

Appellant Absent For Republics Mr. Mulokozi, Senior State Attorney; Present C/C Mrs Mp onzi. Cou.rt Judgernent delivered in open chambers this 21st thy of August, OOO at the presence of Mr. IVilokozi Senior State Attorney and in the absence of the appellant who is to be released from prison forthwith unless he is lawfully held for other causes. It is so ordered. S.AON. VAMBURA, PRM (E,J.) 21.8d 2000 Certified true copy of the original Judgment.

SOADN. WAMBURA C . . I - DISTRICT REGISTRAR MREYA . .: