Francis Lauden vs Republic (Criminal Appeal No 29 of 1999) [2000] TZHC 463 (21 August 2000)

VERSUS . . . . i. ::·: . 'l' .:• --\•.:.:• .-· : ·, JbnGMENT ~ .. ·; :. . . ..... ~ . ·.::.-.i ··.-: . . ,• Freddy J;'J:inga and Francis Lauden were charged with the kidred pr!-al. offnces ·9f- .. l;>.urgtary.:.:·.:c/i{.-;29·4c2Y {rid -t~~ii' :~~~~r;;;y to ·••. . . . . ,..... . ' . . . . section_.265 of j;:!lLPenal Code·._ The, tt:i'ct~ nf~::·fai'i•1;'·str:..,il~t ~-·· ;~rwrd ... On· 14:1;11.)·July:. 993:···t': 'about io .do. p'1ri' .. ·,·Gbil Kc jo . . ·.·.{ ;=:; ••• l .,,., : ; [" •;j • (HVl) and his brother E::ichael Kye jo (P\72) h2d ret1:red for the had indeed been forced ouen. . . .. - ::: .Upon .-discovering. tha·t· · 6ncr' bc1g of . .. . ·;· r.. .-. ... . . . . ' . coffee missing they. sc~.t upor;i., t,racing the suspects.,' In due course • ., • • • • -.: 1 • :- • • ~ . • • • ,L: :: ·:"'- they caught up : : . carrying a bag W:i th the .. 2nrl acc11se.d togethr wi th'"-t'W'o ··o'thdir pereo-n"' . .. . . . - ' . . .. . . . '. . ' ( . ~ .. ; ; .. • · . ·". /;, . of, c?ff~e.. 1-Vhen asked -where hey were ·tt:l'Jiin({ the . )' coffee they al-1:mO; i;hat, they pnl,y,,haQ.. been_ hire·· ·tt·carry it, · •. j';•·· <· :··. ··:·:.:. __ ;; .. .- .. '., : __ ;. ' '. i ,1 • . , '"· . ( i( .' :'. . without disclosing i ther· :th.e.ir .. principal or-·:·their· de s·tinstion . .:· .. . ' . --- .. . . .•.. .. ·-: .. i i .·,:· ... It was the!l t~}h::·,:~~'/0 .brotheT~ raised alarm· ·for. assist·t11ce · ...... ' :-- ;- to which several :pe9ple, r0sppncled 9 · inc.ludin:g I(enne'·dy Gvienkipya . _; .. , ;'. - .• . ! . . . . . (Di72):--· It. was. at. that junqture that U_chungu Mwamk-ongti \jThf·'··· . .. ' · · ·, i·l' . · . · . · -: -·. arrived at. the scene. ... 0 ... /2

2 be his. Indeed none o'f the accused or anyone else laid clsim to it. Both accused protested their innocence. Fred I'ilinga 1 the first accused, swore tk. ➔ .t he joined those who responded to the alarm as he was going to tuke a drink at a local pub .. In fact, he said ' he was the one who was· sent·, to call the local ten cell r i •, ➔ •, ':• •• leader to· gO ·to·, the scene .. In conforming with this te·stimmy Michael Kye jo: (Pv13) -testified that they arresed t.he· second accu~ed wh_o was together with some :j -- .. :,: :_ other p.erson he narped to· be Bokelq, .and :i,-t shortly there::.\fter • .J • . ' . the second· ~ccused fled. •.. The second acQused was ·Francis Lauden. Nowhere, -in 'the 0..rid.ence does Fred r!Iinga feature as being ... ~ ; ·. . ' _one of the suspects.

• ......... '. U:iion ··assei'ssing the evidence the trial court found the first accused not guilty and 8cq:tted, him as a result. I am satisfied, upon my own appreciation of the evidence, that that fincl11.g is uninipeachable. The second accuse<i who. was convicted denid crnmplicity •. · He crsatcis the impression that he- was" waylaid on the way as he was retiJ.r11ing home from a place he had gong. to wash his clothes after . . . a day's farm work. That may haye been so but there appe,c:rs; . . . . . .. ,nothing on record upon which the appelirn:it would have been framed.· .. As, it htis occurred this ca$e was decided. on the credibility of wi tness'es, in . -which C_cse 'the ,trial court was better suited to ' . . . ),.,make a fair asessment •. j,,niY judgment there is nothing on re cord which would vitiate the finding of t.he trial court that in_deed the appe'llant was one of S(?JVB-ral people vvho were caught _red--:-- handed carry1.ng the stolen bag of cof;fee,.· Because the appellant was caught with the stolen bag only minutes after the burglGry, the doctrine of recent posses::3ion operates aBainst his· pro_tested innocence. · .. · .. .-.·.

3 By renson of that doctrine I am satisfiea. that the tri2l court was correct in finding the a1Jpellant guilty of both offenc9s. In the result the 2.:ipeal fails and. it is dismissed. in its entirety. Judgment to be delivered by the District Registrar 011 21st August, 2000. J .• l:I. MAC!(AI"f Jj JUDGE 16 .-8.2000 Cort..11i1: -S •. A.-N. Wambura, PRI-T. (E.J.) ·1:ppellunt: Present For Republic: Mr,. Mulokozi, Senior State Attorney· - present Q_o},~~-:1 ~ Judgment delivered in open court this 21st dar of August 2000 et the presence of both parties. Right of Appeal explainedo PRM (E. J".) ,J / Certifi.- true copy of the original. _.--; S.il..N., WAMBURA DISTRICT REGISTRAR E~YA