Waseme Mkungu and 2 Others vs Republic (Criminal Appeal No. 14 of 1999) [1999] TZHC 281 (26 October 1999)

Jk-lw/4 IN THE RESIDENT MAGISTRATES' COURT OF MWANZA AT MWANZA (WITH EXTENDED JURISDICTION) CRIMINAL APPEAL No. 14 OF . 1999 FROM HIGH COURT CRIMINAL APPEAL No. 138 OF 1999 C/F CRIMINAL APPEAL No o 139 OF 1999 & C/F ERIMINAL APPEAL No. 14o OF 1999 (ORIGINAL CRIMINAL CASE Noo 20 OF 1998 OF UKEREWE DISTRICT AT UKEREwE) BEFORE: J oN.Ko SWAlu .Esq., SENIOR" DISTRICT :V1AGISTRATE0

1. WASEME MKUNGU ) 2 0 IVDI MKAMA ) ••oooootooto•ooootoooooooooAPPELLANTS 3oMOSHI·MKUNGU- ) VERSUS THE REPUBLIC eoaooooocacoc,o.cooooooooooooooso RESPONDWT """-, ~ D G M E N T §;_Sos. I_aHIO - PRM (EXT.,J.) The three appeals, Appeal No. 138 of 1998, Appeal No. 139 of 1998 and Appeal No. 14o of 1998 filed by Waseme s/o Mkungu Iddi s/o Mkama and Moshi . - ,- respectively were consolidated and heard together. The reason for consolidating the three appeals together i is that the appellants in these appeals together with one Masumbuko Lweganwa who was the 2nd accused, one Maeudeleo s/o Kabehe who was : 'J the 3rd accused and one and:,ta s/o Wamba-who was the 5th accused were jointly Qharged with the offence of Robbery with Violence contrary to sections 285 and 286 of the Penal Code in Ukerewe District court Criminal Case Noo 20 of 199~. The 2nd accueed, 3rd accused and 5th accused were acquitted. The appellants were convicted on the offence charged and sentenod to fifteen (15) years imprisonment. The appellants now appeal to this court·against both the conviction and sentence. The testimony ofu~lf Naletwa (Pw.1) at the trial cou.rt W?-S to the effect that when he (Pw.1) 1 _ one Ha:nisi Bakari and

I •'..,,• . ' . / '..,· ·i ·'. ! .. . , I ,_ . . . ., -. \ .. . ,.. '

C 2 Revocatus Nenze were amleep in the ean,oe on 7/2/98 at 2.00 porn. after the work they suddenly saw Waseme (1st appellant), Moshi (2nd appellant) and Idd (3rd appellant) who entered into their canoe and started to cut him (Pw.1) with a 1 panga 1 which was in their possession. His (Pw.1 1 s) testimony showed further that the appellants robbed the engine, Veneroch make H/P.10 from him (Pw.1) and also robbed a fuel line from them (Pw.1 and the others),. According to his testimony, they reported the matters at N2.nsio polic'3 st::-,tion and that the engine and :'fue:1 line stolen were the ones (exhibit P2 collectively) at the trial court. His testimony showed, in cross-exmination by the 1st appellant, tha.t it was a bright moon light on that r,iaterial date. The testimony of Deonizi Charles (Pw.2) at the trial court was to the effect that he handed fishnets 9 emgine and canoe for fishing to his employees, Buhatwa, Hamisi and Revocatus Nende on 6/2/98. His (Pw.2 1 s) testimony showed further that he went to see his employees and after he found that one of them has been seriousily wounded he (Pw.2) hurriedly picked him and took him to the police station where he was given a PF.3. According to his testimony, they went to the police station and after his employees, Buhatwa, Hamisi and Revocatus Nende, were interviewed if they knew the robbers who robbed them they mentioned Waseme (1st a; 1 pellant), Moshi (2nd appellant) and Idd (3rd appellant). It is his (Pw.2 1 s) testimony that on the arrest of 1st a;_:ipellant halst appellant) mentioned Sandanya Wmbura (5th accused) who Was a resident of Magu and that he (Pw.2) went to Magu where he arrested him (5th accused). The testimony o Michael Mang'ombe (Pw.3) at the tr:a* court was to the mffect that he received information on 8/2/98 that one of his fish boats has been stolen and that he found that it was true that his engine -HP/10 Model RP LW/HP serial numbers G.04267710 had been stolen. His (Pwo3 1 s) testimony showed further that he had bought full tank No,8, engine and fu:H line at fish Park Mwanza at shillings 1.2 million and that the receipt (Exhibit P2) was the oigin~l receipt for the same,

4 - According to his (Pwo5 1 s) testimony, on their way Leonard introduced him•(Pwo5) to Idd Mkama and he (Pwo5) took them (Leonard and Iddi Mkama) ; to the police statiom It· is also in his evidence that the owner of the ma'chine appeared at Kirumba police station where he identified· the machine shovm to him as his recently stolen machineo The testimony of _Noo. B 7165 -Detective Sergeant Peter (Pw.6) at the trial court was to the effect that the 3rd ·appellant was --~ .... aded to him 1 on 10/3/98 at _8,OO aem~ for purposes of taking his (3rd appellant's) caution statE>,ent. He tendered the 3rd appellant's caution statement and it was marked as exhibit P5~ His testimony showed, in cross-examination by the 3rd appellant, that he (Pwo6) didnot assault him before he (3rd a;>pellant) made his caution statmnmnt. The defence of Hussein Mkungu (1st apellant) 0t the trial court was to the effect that when he was at his shamba .. in the afternoon on 10/2/98 the Area chairman 'Kitongoji chairman arid many other peoples he did not know appeared and told him that 1 he .. , was needed at the village office. According to his defence, 'he was put under arrest at the village office and taken to the police station where he was charged with robbery with violence offnceo The defence of Masumbuko Rweganwa (2nd accused) at the trial court was to the effect that he_was at home on 24/2/98 at about 11.30 a.m .. and he was arrested by sergant Peter. His defence showed further that the complainant was asked if he·.( 2nd accused) was the one but he denied that he (2nd accused) was the one. The defence of Maendeleo s/o Bahe be ·(3rd accused) at the trial court was to the effect that he was at home on 18/2/98 and the police came and arrested him. His defence showed further th;t he was taken to 4 he police station where he was charged with the offence

• .. ~ of robbery with violence which was committed on 7/2/98 in the lake.

According to his testimony, he decided to'go to Kirumba police station after he heard peoples saying that thee were stolen engines at the said polices tation and that he identified his stolen .engine even before he compared it with the numbers on the receipt (exhibit-P2). The testimony of Hamisi Bakari (Pwo4) at the trial ourt we..c to ths I effect he (Pw.4) Buhatwa· and Revocatus wero1 fishing at Bwiro Island on 7/2/98 at 2o00 Porn• and ·that tney tere with a boat, engine No.G.04267710 .. ~ fish..YJ.et and fuel tank No .• 8 all. properties of one Michael. His (:i?w.4 1 s) testimony showed further that while sleeping they suddenly . saw peoples in· their boat and those peoples ·cut them with a panga o. but he could not identify the one who cut him (Pw.4) with a panga According to his (Pwo4 9 s) testimony, the peoples wh'o·· ct them with a . panga took their engine and tank fuel pipe and left them swimming in the lake. It is also in his (Pw.4•s) testimony that tey were later sen~ to po:J..ie statio:r;i.. , His testimony. showed,· in cross-examination by 1st appellE;,nt, that it was a bright moon light on that night and he (Pwo4) personally saw him (1st appellant on that night. His testimony showed, i_n cross-examination by 2nd appellant', that he saw the!!( 2nd appellant ad the other two apl;~llants) at the time when he .(2nd appellr-t; was assaul,ting them, His testimony showed, in cross-examination by thcl, .,, 3rd appellant), that he was seeing him ( 3rd ap::,1ellant) at Kirumba in Mwanza and he saw him (3rd appellant) on that night. The testimony.of No. E.4129 P 0 C., Samson (Pw.5) at the trial court was to the effect that after one person came at Kirumba Police station on 9/3/98 at 4o00 porno and reported that he suspected the engine he saw put in the house of one Leonard he (Pw.5) and another police officer went to the house of Leonard. His (Pw.5 1 s) tQ.stimony showed further that they examined the alleged Leonard who informed them that there was an engine brought at taci!t ho"tee by.f'. ...... Iddi Mkama ( 3rd appellant) known as Makaputula and put in his ( Leonard •d; and that room/they took the alleged Leonard and the :: ,·.?, ,>:: to the Police station.

The defence of the 3rd a:_Jpellant, Moshi Juma Mkungu, at the trial i court was to the effect that he was at home on 8/7/CJ8 at 12.00 noon on Saturday:and two policemen arrested him and took him to the police station where he was charged with false charge._His defence showed, in cross-examination ?Y prosecutor, that he was at home at Nansio in the night on 7/2/98.: The defence of Sandalya.s/o Wambura (5th accused) at thet'.t'ial court was to the effect that he was ar'rested on 19/3/98 on allegations that he received and hidden an engine. His defence showed further that having denied to have committed the alleged offence his house was searched but nothing was recovered. The defence of the 2nd ai:)pellant, Iddy Mkama, at the triai court was to the effect that when he was on the way home from Kirumba Mwaloni where he went in the morning o~ 9/3/98 he met the policemen, one Samson and one David who informed him .that: he was needed at Pasiansi police out post. His defence showed further that he was sent to .the said police station where he was told that the alleged engine was found at his home when the alleged engine was recovered in the house of one Edwin. The learned State Attorney, Mr. Outa, submitted that the , .. appellants were identified by Pw.1 and Piv.4 at the scene of crime and th.e 2nd appellant was arrested while in possession of the stolen boat engine. He continued t9 submit that because the 3rd ~ . . . appellant confessed to have' committed the alleged criminality, all the factors taken together established that the appellants committed the offnce charged. He further submitted that if the offender isaccompanied by more than one offendr then th offence ' committed is that of Armed Robbery and he refered this court to the Court of Appeal case of John Joseph Onenge and Julius Senene Versus I Republic - Criminal Appeal No. 24 of 1?93~~·court of Appeal at Arusha (unreported). He lastly submitted ~'hat the fifteen years (15) imposed are illegal and they should be corrected as thirty years imprisonment is the mandatory punishment for the scheduled Armed Robbery offence&

r 6 It was the evidence of Pw.1·and Pw.4 at the trial court that the appellants were the ones who.cut them with a 1 panga' on 7/2/98 at .qo porno and robbed_ the alleged engine ( exhibit P2) ,· and that they identified them because of the bright moonlfghto The testimony of Pw.2 at the trial court was to the effect that after he found that one of his employees (Buhatwa,Hamisi and ·• Revocatus Nende) was seriousily wounded he hurriedly picked him and ' took:him to the police station where he was given PFo3 form and that when his employees, Buh3-twa, Ha.misi and Revocatus Nende, were interviewed at the police station if they knew the robbers who robbed them they mentioned Waseme (1st appE;;llan), Moshi (2nd appellant) and Iddi (3rd appellant)o Given the totality of the evidence, as above demonstrated, it is as o:tivious as day, that the conviction against the· appellants. could not be avoided, it was as imraitable as it was indeed ·a must. On the strength of the evidence avai;]iable I find that there is no where the conviction by the trial court can be faulted •. The appeals by appellants hi.ve no merits and they f_ail in their enterity. I do not concede with the submission of the learned gtate Attorney th&t the fifteen years imposed against each of the·appellant can be corrected and thirty years imprisonment imposed when the offence under which the appellants wee convicted is Robbery with Violence which is a mimor offence •. The sentence of fifteen years imprisonment is left undisturbed. Order accordingly~ :ii---......-""- tl"A ◄ ·;- -T-,.' :4it-, __ ,""··>-' .· -;; r.·'\T>Ai • .• , ~ 1 . ,;t::· -- .. · S.S.S. KIHIO . PRM .. / , c= ) , 1 _ ,. , \·, t<;XT. J. Judgm.ent delivered in ,'i;he presence of Miss Safina Hassan - State Attorney Traink'1 1 ror the Republic and in the absencE;_ of the appeJlants •. .. ~ .. . I I • I :5tt~ -~ s.s.s. KIHIO =PRM (EXT. J .) , 26/10/99 -_ther right of appeal explained. J-~ ✓-- s.s.s; KIHIO =PRM 26/10/99 .. .;_ ./