Japhet Mwakihaba vs Republic (Criminal Appeal No. 89/1998) [1999] TZHC 465 (6 December 1999)

I' ' ,f MWIPOPO J. ----:::..1.-~ IN THE HIGH COURT OF TA.t'JZANIA iT MBEY.A --··-- .CRIMINJ.L· APPEAL NOo 8,/1998 (ORIGHJJi.L CRIMINAL CABE No; 91 OF 1996 DIS_TRICT __ 9ouR11 TUKUYU) · •I'.~ .,.I...~·. ,,. J APlli..'11 MWAKIHAB{t-. ••• O' •• , ••••• .- .'. , ;, •••• i1f PELLANT ~VERSUS . . . . . : . . .. ·., ., ;REP.UBLICo &··• oo a o e o o o o • • o o o o • • • o o • o o Io o .RESPONDENT JUDGEM1'NT ~ The appqllant.. J aphet Mwakiha:ba was charged and convicted with the offrice of ... theft by public servant c/ss 265 wcl 271 of the Penal Code •. Tllt;!_ amount .involYed in theft was shs.1,386,000/= the property of Mpunga Primary Society as contain.ed in the 2nd court. H_"' .wc)B_ ~cquittecl on the first count of consipiracy to steal;,, The rest of the 5;counts involved other co-accusods who were requitted.except -·_..,. for him., He WfiS sentence,d. to 5 years imprisonment and erdered to refund t_he stolen sum of shs.1,386,000/= to the same J.Vipunga Primary Societyo The only grounds of appeal raised were only two that no evidence pr9ved the offence convicted and that the evidence c~~d against the appellant was unc•rr.oborated by undependent evidenceo The learned r-~r. Nangela .{i;'.A) did not support the conviction ..,. based on his arguments that the two prosecu,tions PW2\Burton Mwakabasya and PW 3 Francis Mwctlwisi were interested parties whose evidence needed corroboration. 'which was lacking., . From the defence of the qppellant when he testified as DW1 the money was withdrawn from the bG.nk by the 1st and JYd2 Tijalo $/o Mwasalamba and the 3rd and .... -- ,, ... DW3 Patrick Mwaipasi illl.d that it was gi_Y,~ri to him together with one ~amson Mwambene and Saimon Mwahiisi the three ef them went toget'her to buy maize at Mbozi. While at Tlllowo the appellant went out to list down the sellers of the 80 bags of mo.i,1,:3 leaving the money in the motor vehicle together with the said Saimon Mwe.lwisi and Saimon Mwrunbene when he went to collect the money for paying to the maize sellers both Saimon Hw2.lwisi and Samson Mwambene refused to :have been left with the money in the motor vehicle and said they didn I t know about the money •. l I I

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• c.. - This case was wrongly prosecuted for the said Saimon Mwalwisi Md Se,nson •• Mwo.mbene neither testified for the prosecution nor were they ch:.--i.rged jointly with appellruit'; Instead the prosecution cercharged the Chairman of the Society as 2nd and DW2 and the c1erk who enlast<:;d the money from Chairman of the-·s·oc iety as ... •'. 2nd arid DW2 and the clerk.who ertlasted the money from Chairman in Mbeya while they were not present when the money was a6tuo.lly stolen in Mbozi. It appears . . - . " .. •. I · .... -· obvious that the said Sa_imon Hwalwisi and Samson Mwambene who were the most likely thieve of this stolen money have been ciling their escape not from the dclrges of the theft of this money a.nccessfully up to now probably by using the same stolen morn:o:y. to cut off any finga'S that dared to ,point at them as the culprits. 'l'he prosecutions case and evidence is quitfJ unbelievable and uncredible that the appellant is the one who state the money the trial court wrongly convicted him of theft of the money• The same conviction is really quashed. The sentence of 5 years imprionment ancl order of compensation- of the money to the :,,· 0 1 n.-:;a ~ I Primary ~Society are both set aside the appellant Japhet Mwakihaba is discharged from prison with immediate effect • •