Japhet Mwakihaba vs Republic (Criminal Appeal No. 80 of 1998) [1999] TZHC 65 (6 December 1999)

IN THE HIGH COURT OF TANZANIA iT MBEYA CRIMINAL APPEAL NO. 8/198 (ORIGINAL CRIMINAL C1E ro. 91 OF 1996 . . DISTRICT COURT TKU) JPHL1T . - vmsjs REPUBLIC. 0 • OPESPONDENT WG JNT The. appellant Jap1et Mwakihaba was charged and -convicted with the offence of theft by public servant c/cs 265 and 271 o the Pena1:Cod.' The amount involved in theft wasLshs.1,386,00(.)/= the proerty of Mpunga Primary Society as contained,. in the 2nd oot He was acquitted on the first count of consipiracy to steal. The rest of the 5 counts ino1ved other co-accuseds who were requitted except for him Hewa sentenced. to 5 yeax:.imprionment and ordered to refund the stolen sum of shs1,386,0001 to the same M•punga Pimary Society 0 The only.grunds of appeal raised wereOnly two that no evidence proved the offence convicted and that theevidence and gainst the appellant was unc.rroborated by undependent evidence 0 The learned Mr. I'Tangela (SA) did not support the conviction based on his arguments that the two prosecutions PW2 Burton Mwakabasya and PW 3 Francin Mwalwisi were interested parties whoe evidence nèdd corroboration which was lack ing . . From the defence of the qppellant when he testified as DW1 the moner was withdrawn from the bank by the 1st nc'i DW2 Tialo s/o Mwasalaniba and the 3rd and DW3 Patrick Mwaipasi and. that ± was given to him together with one samson Mwambene and Salmon Mwalwisi the three of them went together t'ouymaizë at Mboz±. While at Miowo the appellant went out to listthe selle of the 80 bags of maie leaving the money in the motor vehicle together with the said Saimon Mwalwisi and Saimon Mwambene when he went to collect t 1 e money for paying to the maize sellers both Saimon Nwalwisi and Samson Mwambene refused to have been left with the money in the motor vehicle and said they didn't know about the money.

-2- This case was wrongly prosecuted. for the said Saimon Mwalwisi and Sarson Mwasbene neither testified 4 fr the dsecEion nor were they charged jointly with appellant. Instead the prosecution co-charged the chairman of the Society as 2nd and D 1 42 and the cletk whoenlsstdthè money from Chairman of the Society as 2nd and DW2 and the clerk who enlated. the money from Chainnan in Mbe.ya while they were not present when the money was actually stolen in Mbozi, it appears obvious that the said Saimon Mwalwisi end Samson Mwambene who were the most likely thieves of this stolen money have been cuing their escape not from the charges of the theft of this money anccesfully up to now probably by tsing the same stolen niey to cut off any fingers that dared to point at them as the culprits. The prsecutions case and evidence is quite unbelievable and uncredible that the appellant is the one who state the money , the trial court wrongly cnvicted him of theft of the money. The same conviction is really quashed. The sentence of 5 years imprisonmnt and order of compensation of the money to the u;a Primary Society are both set aside the appellant Japhet Mwakihaba is discharged from #rison with ismediate effect.

E,L.z. MWLL-'OPO . JU DGE 6/1 2 /1999 1-5 cert 'fy hat this is a true and correct copy of the original 7 - I DISTRICT REGISTRAR8