Francis Lauden vs Republic (Criminal Appeal No 29 of 1999) [2000] TZHC 253 (21 August 2000)

:•- .4. 4 - i v IN THE HIC-E COJRT OF ZNL T MBEYA CRITIIIV.L yl._iE.AL N. 29 OF 1999 (oRIGINAL CR1 1 T-L C.PSE NO.175 91998 FROM RUNGIE D1SD.UCT COURT PT TU1[UYU) I'?.ANCIS LUDEN . a.,. .o APPEL1jTT' • VERSUS . THE E?JBLIC... . . . O RE?OND&T JUDGLNT

• • • •':- . . Freddy iinga and iPrancis Lauden were c.narged .wih the kidred peir'l offences of burgL'.'y c/9294(2) and stealing conz.rr to section 265 of the Pen1 C6de. The facts re f-ir1y str i,ht f orwt id, On 14th July, 1998 at about 10.90 .mdabr1el ro3o (1) and his brother iicaael Kyejo (72) hd etired for the night vhen they realiocci txat their grnu.no-thers house in qich llchungu Pliwamkonga (Pv7l) o t hi coffee was being bur1c a.. Jhen Ghey finai.ly went out the discovere1 that 1i door to t1it house hed indeed been forced oen. Upon discovering that one bar , of coffee missing they set upon tracing the suseots0 In du coirse tney caught up with the 2nc accused to.ge ther with two other persoi carrying a bag of coffee. Jhen asked where they were t o ,'king the coffee they alleged that they only had be-en hired to cerry it without :disQ1osing either their principal or their destination. It was then that the two brothers raised ala .rm for assistance to which several, people responded, including Kennedy Gviankipya (D\72). It was at that juncture that Uhunu ,Ivwarnkonga(?V1) -. arrived at the, scene. Ho soon.recognized the 'hag of coffee to

2 be his, Indeed none of: the accused or.:änrone else laid claim bit. Both accused protested their innocence. Fred Minga, the first accused, swore tn:the joined those who responded to the alra as he was going to take a drink at a local pub. In fact, he $aid he was the one who was sent to caU the local ten cell lead.er to go to the scene. In conforming with this testimony L.icheel Kyejo.- testified that they arrested the sccond accused who was together with some other person he named to be..oceo, and that shortly thereafter the second accused fled, The second accused was Francis Lauden. Nowhere in the evidence does Fred lVlinga feature as being one of the suspects. Upon assessing the evidence the trial court found t he first accused,. not guilty and ccqaitted, him as a result. I am stisfied, upon .uly own appreciatioi of the evidence, that that findin, is uni ipeachable. The second accusee who was convicted denied complIcity, He Cr2at5Lthe im3ression that he was waylaid on the way as he:ws rethr.i-ing hóne frem a place he had gone to wash his clothes after a deys farm work. That iay have been so but there apors nothing on record upon w1iich the appellant would have been fzamed, A. s it has occurred this case was decided on the credihility of witnesses, iii whi.ch case the trial court was better suited to xreke e fair asiessment, In my judgment there is nothinJ on record vhich wouldvitiate the finding of the trial court that indeed the apellant was one of several people who were caught red- h3ncied carrying the stolen bag of coffee. Because tne amellant was caught with the stolen bag only minutes after the burrl'ry, the doctrine of reconl possession operates ae_,ain st his protested iiinocence

f 3 - V By reason of that doctrine I am satisfied that the trial court was correct in finding the appellant guilty of both offences. In the result theappoal fails and it is dismissed in ite entirety.. Judgment to be delivered by the District Registrar on 21st August, 2000. J.r. i44CFAI'fJA TT1I ii UJJ'jji -1 16.8.2000 2 L 00 Q Corin: S.A.N. Warnbura PRM (E,J.) pellant: Present For Republic: Mr. Mulokozi, Senior State Attorney - present o/c iIrs, Mponzi. Court Judgment delivered in open court this 21st day of August 2000 at the pDesence of both parties. Right of --- appeal explained. 7-4 rBURA PRM (.0) I 2148.2000 2: Qrt.ied true coy of the original. S.A O N, WAMBUR.A DISTRICT REGI STRAR IJBEYA