Daniel Amos Mwasibata vs Republic (Criminal Appeal No. 28 of 1999) [2000] TZHC 462 (21 August 2000)

IN THE EIGH COURT OF TANZANLti AT MBEYA CRHI:INAL A?=;EP.,L NO. 28 OF 1999 ( Qriginal Crii.1i11.l:;l Case No :.103 of 1998 of the District Court of· Rungwe District at Tlilkuyu) DANIEL liltOS I/f\•L:3IBATA ••••••••••• ,, •••• APPELLANT VERSUS "'~ : ·-tt 0 ·i.va:s,: c-ommon grom1d at. the trial th·;:lt .the pomplctJnant, ol!.e . . . ' "', ·'. ,;.i' . . .} ' · ; • . Rtu1.gvve DiE3trict; 1 She left,.for Kyel ·sometime .. in M;ar9h, 1997? . ' ·... . : where she remained until the 26th day o:t;. _Ju;ly, that year when her son went to Kye).a .to .inf_orm her that her house (PWl' s) house had . ·- ' •- "· .· -- . . ,(. . " .. ,·. . . . . : . ·:been broke,c ino. ,.and .. an f:lss9rtment of'. personal effects were stolen . . . •.. . \ . ·• . ... _ '.>the .. inve stgati ve J?rpc~ ss : youth in the village were pressed to na.ne ,the thief .. ,. One. Ntufro Mwakapola responded by namints the .. . . '· ,,•, .. . . • .i: .. ·; . : . m;ipelJ:ant. This Ntu:fye Ewakopola did not testify, which letves ., th .:_esti,mo11y of PWl on this matter credible only to the extent , . thot,,,:t;l1e _ppellant .w~~ _ncmed as - .suspect the rest of her testimony " • is enirelY,-;-P:$!:1fSaY: t,9, .. whL}1 the tria\ ;court ought not to hv.ve -:· :·-. -: ri ·:_:, ~ ;; :: J- - 1 : •. : -~ ;. , __ •. given any weight. Actin~. o;i the information that the complainant received from .t :· her source:,, the accused's room was searched in his absence. He . . ··.;···, wa,sl' according to Mussa Frank (PW2) 1 s testimon_y, which corroborates tho appellant' S defence 1 the appellant ts room was search ViThile l1e .', ..

2 vms in prison serving a sentence relating to different circumstanceso The room in which the appellant lived in.yvl'y-ch he lived W8s rented from Hamisi Natola (PW4) .. who identified it to those who searched i to Indeed the testimony of Tinioth r,iwamisi (PW2) who swore th.Gt one Atufigegwe told a village .i:11eeting that the ;appellant WGS selling ' ' ;'-C• personcil goods. is ·purely hearsay because the -s:.oμrce of that information did not testify. .What was the evidence on which the c::ppellrmt ·was convicted. The Republic did not, Slll)pOrt the oonvicti o, but E.r. Boniface 7 learned. state Attorney, ,did. not give re2,sons why they took that position although he was Given seven days within which to do so. Even though the Republic·he1l'said nothing, the evidnce on record at best establishes a ru.mou.r which, in turn 1 generates suspecion upon which the cowi~;ctio11 is founded. For there· Is eritLrely no credib'le evidence tht link:s the appell:int 1Ni th the crime.. In the ci:tcGilstanbes· of ·this case anyone who 0 khew th.at' the a1)pe\t1ant was . in p:ris·on would have . hid the. stolen p;oprty in·· hi~ roiJn1. I am . . . ·satlft!:ia, therefore, th,Jt the convictio11. i unsound and· cannot be allmved to stand. In the result the G:(Jpesl is allowed, . ConsequentlJr, the vonviction is quashed· and the sentence is set. aside • . Unless, therefore, ho be further remende d in, c:ustody on accom1t of. any ·other lcwful execuse, he will be sent- at liberty u1:)011 tb.e Dtstrict Registrnr pronnouncing this. judgme!l~ on 21st August~-. 2000. ., g,1/q/_2000 ~ Cor::nn: S .. A.N. Wambura, PRr.I (E.J •. ) J.L'.i. MACKAFJA ·.; : JUDGE 16 ., 8,:2000

3 Appellant: Absent For Republic: Mr. Mulokozij Senior State .Attorney; Prosent f!Irs .. I'/Iponzi. Judgement delivered in open chambers this 21st d:.y of Augu!?-, :.ooo et the presence of I-iTr. Muloko.zi, Senior State Attorney e.nd in the absence of the appellc:mt who is to be released from prison forthwith unless he is lawfully held for other causes. It is so ordered., S.A.N. WAMBURA, PfilI (E. J.) 21.s.2000 Certified true copy of the original Judgment. So~£. TT. W.AI 1 /iBURA DISTRICT REGISTRAR MR-SY.A