Japhet Mwakihaba vs Republic (Criminal Appeal No. 89/1998) [1999] TZHC 380 (6 December 1999)
Judgment
If
MWIPOPl_o .
IN THE HIGH COURI' OF TANZANIA
.ii.T MBEYA
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CRIMINAL APPEAL NO. 8,/1998
(ORIGINAL CRIMINAL CASE NO. 91 OF 1996
DISTRICT coimr TUKUYU)
VE"RSUS
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'IJ U D G E 1'-'i 1'J N T
The· appelant J apht- Mwak.ihaba was charged. an.d convicted with the offence of
. theft by 'public servant c/ss 265 nncl 271 of th,e Penal· Code. 'J;'he amourif involved
in thft was shs_.1,386, 000/= the property of Mpunga Primary Society as contained
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in the 2nd court. He was acquitted on ·the _first count' of· consipiracy to s-teal.
The rest of the 5 counts involved otlnier, co-acuse-ds who were requitted except
for him~ He was sentenced to 5 ye~- ±mprisdnment and erdered to refund the stolen
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sum f SflBo1,386,ooo/= to the same Mpurtga Primary. Society
The only grmmcls of appeal raised were only two that no evidence proved the
offence cqnvicted and that the evidenee a11d against the appellant was unc.rroborated
by undependent evidenceo• The learned tfr. Nangela (SIi.) did not support the conviction
based on his arguments that the two prosecutions PW2°Burton Mwak.abasya 1md PW 3
Francis Mwalwisi were interested pattiBs, wp.ose evidehc~ __ i::i.~eded corroboration which
was lacking.,
From the defence ·bf th_e qppellant when ·he testified as DW1 the money was
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withdrawn from the ba..nk ··b;{·the- 1st. and fM2 Tijalo s/o·Mwasalamba and the 3rd and
DW3 Patrick Mwaipasi D.nd that it was giy..e_n to him together with one leaving ti-i.;·_money in the motor vehicle 'togei;her with the said Saimon Mw2-lwisi
and Saimon Mwrunbene··-- when he went to collect the money for paying to the maize
sellers both Saimon Hwalwisi and Samson Mwambene refused to l1ave been left with
the money in the motor vehicle and said they didn't know -about the money.amson Mwambene
and Saimon Mwa1wisi the three ef them went together to buy maize at Mbozi.
While at Mlowo the appellant went out to list _down the sellers of the 80 bags of
mai,
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Thia case was wrongly prosecuted for the., said" Saimon Mwalwisi and Sc".nson
Mwo.mbene neither testified for the prosec.ution nor were they charged jointly with
appellmit. Insteaci the prosecution co-charge~ the Chairman of the Society as
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2nd and DW2 and. the clerk who enlastecl t_he .rnC?ney from Chairman of the Society W3
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2nd and DW2 and the clerk who enlasted the money from','!l~;:'.r.t
Primary ,Society are both set aside the appellant Japhet Mwakihaba is discharged
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DISTRICT REGISTRAR'
MBEYA
....nairman in Mbeya while
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they were not present when the money was actuaily .q_olen in Mbozi. It nppears
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obvious that, the said Sa.imon Mw2..lwisi and Sa.mson Mwambene who were the most likely
thieves of this stolenmoney have been ciling their escape not from the charges of
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the theft_of this money anccessfully up to now probably by using the same stolen
money to cut off 'ari.y 'f ing2rs that dared to point at them as the c;ulpri ts.
The .prosecutions case and evidence is quite unbelievable and uncredihle
that the appellant is the one who state the money .the trial court wrongly convicted
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him of theft of the moneyo The same conviction is really quashed. The sentence
of 5 years imprisonn1,ent a.ncl order of compensation of the money. to the 1,,