Philipo Justine Siame vs Republic ((Dc) Criminal Appeal No. 89 of 1997) [1999] TZHC 416 (24 September 1999)

' I IN 'l'i-JE HIGH COUR'l' OF TAN2;_IA AT l-'iBEYA (DC) CRirHNAL !.;J?PB:u.i NOo 89 OF 199'? (From MbeJTa District Court Criminal Case Noo568 of 1996 Before S.M. Hurnanyika - Resident r'lagistrate) PHILIPO JUSTIN.!£ SIA1•'iE • o • " • , •••• " • • APPELLANT . . Versus· 'l'HE REPUBLIC :tTuSPOND.8NT r 0 .. Five persons were jointly arraigned before the district court of Mbeya on an indictment carrying two countso they were Castro s/o Andr,ea il':ya @ Alfa Iv;angi, Zawadi. Nzunda Q Kanyama Kalusya Bwalya, Philipa Justine Siarne, Atupele Akili, and Oscar Ngajilo. i'he counts were: 1''irst count Conspiracy to commit an offence, contrary to section 384 of the l'enal Codee

285 and 286 of the Penal Code. 
1r1e aJJpellant, Philipa Justine Siame, was the third accused person, 
and the fifth·accused, Osca Ngajilo, died.in the course of the trial. 
I'he remaining four persons were found not guilty as charged and acquitted 
of both countso But the matter did not end there~ The trial court 
entered an alternative conviction for the.offence of Being in possession 
of property suspected to have been stolen or unlawfully acquired, contrary 
co sect::.on 312(1)(b) of the Penal Code, and sentenced ea.ch to five years 
imprisonment.. ·rhe conviction and sentence. aggrieved the appellant, her;tce . 
this app~c<l. which ·was unresi~ted by the• Republic and heard in .the absence 
of the appellant who had expressed a wish not to enter._an a1?pearance •. 
I shall state the facts establ:i.shed :Cn ·evidence to the extent that 
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they relate to the appellant, 'l7he merchandise shop of Ally Sanga (P\v1) 
J'•. ' 
at Uyole area within the l'-'iunicipality of Mbeya was broke·n into during

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the night of 26.7.96 by 1..m.Lcnown persons armed with a gun. 1'hey shot 
in the air, tied up the arms· and legs of the watchman, Sarnwel Shayala (HJ2), 
covered his f2.ce with his coat, and erdereci him not to raise an alarm • 
.. ... 
1'he thieves then made away with a large assortment of items and goods 
of an estimated value of _sh.s.3,562..,000/== i';)elonging to HJ1. The thieves 
were not identified at the scene of crimeo 
On 3007.96 D/Bgt. Credo (PVJ3) of Jv1beya CID Police arrested the 
appellant. HJ3 searched the house of the appellant on 2.B.96 and 
nothing incriminating was found thereino· On being cross-examined by 
the appellant PW3 said :;r never found you with any stolen property ... : 
iUld on being cross-examined by the public prosecutor the appellant said 
the police did not take away any of his clotheso In short, no property 
in any nianner incriminating was found with the .. appellant.- 
I would, with respect, agree with.the learned state.at'torney, 
Hr. Boniface, that this appeal is abundant in merit~ · 'l1he cort~iction 
entered e.gainst the appellant in the aiternative offence was entirely 
unsupported by evidence.. I must say I am 'astounded by that decision. 
An essential and foremost ingredient of the offence under section 312 
of ·:the Penal Code is possession. No property .which could reasonably 
have'been suspected to have been stolen or unlawfully acquired was found 
in possession of the appellant. It becomes clear that the tria+ 
magistrate was not properly ·seized of the evidence before him which he 
had recorded himself .. It puts to question his basic knowledge of our 
criminal ).awo It is sad to note that he is a resident magistrate. 
Convictiom~ in criri1inal cases are not merely imagined or guessed_ c1.t. 
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It takes evidence to convict a person: of crimes. It takes far more. 
than mere guesswo:rk. ·,. 'l'here has to be evidence which is legally 
admissible in a court of law, and, moreover, such evidence has to 
prove the guilt of the accused beyond all reasonable doubt. · · Cm the 
evidence, anh in the circ,_~ip_stanc,es, I am aatisr'i~d th.it the appellaμt 
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was as of right entitled to have walked away a free person after he 
was acquitted of the charges preferred against himo 
Accordingly, I allow the appeal, quash the conviction, set 
aside the sentence, and hereby order the imr:iediate release of the 
appellant, Philipa Justine Siame, from prison unless otherwise 
JU:JGE. 
24 September 1999. 
For Appellant; .'-1.bsent. 
For :i.tepublic: I 
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1r'o Boniface, l:i.A. 
I CEifl1.I1?Y '11-IA'r THIS L::i A TTIUE CuPY OF 'l1LE OiffGINAL.