Mihidini Chikuni and Another vs Republic (Criminal Appeal No. 28 of 1999) [1999] TZHC 276 (8 September 1999)

.. t n THE RESIDENT MAGIS'l'0ATE 1 S COURT OF MrWARA AT JirWARA APPELLATE EXTENDED JURISDICTION CRIMINAL APPEAL NO. 28 OF '1999 (Consolide.ted with Criminal Appeal No. 29 Jf 1997) Original. Criminal case No. 118 of 1996 • Of the District Court of tlachingwea .. at 't-lachingwea &e!ore J.K.A.KHALIK!. ESQ, P.D. MAGISTRA'rE .·, . MIHIDINI CHIKUNI MID ANOTHER----APPELLAfff V•ntus THE REPUBLIC • - • , •---RESE()N.DEm NURDINI S/t) CH!KU?-TI and OOHAME10I S/0 SALU.M wet-~ before the· :Oistrict court of adhingwea charged with breaking into a building and o::Jlmlitting fellony c/s 296(a.) a.'ld 265 of the per,.al code. Nurdin. s/o Chikumi. was the first accused and Mohamedi s/o Salum aP}'.!eare1 as the fifth accu respectively• After full trial, on 29/11/96 the Court . found the appellants guilty, eo:nvictod them and, were each sentenced to five years imprisoM1ent. In addition to that sentence they were ordered to pay compensation for the unrecovered articles. The unrecovered articles were immerted'to be one ma.tress value at 8000/=• five spoons valued a:t shs 1000/=• two T.shirts valued at 2000/=, and trousers valued at s·hs 5(XXJ/=-. The ppel1 ans are now ap-pealing to this court against both Mnviction and sentence as well as against the compensation order • . ' . . . . ' Reading that memorandum of appeal t•ve gathered that the appellants one simply complaiming that there was no sufficient evidence upon which conviction could be based. In effect their memorandum is an analyeis of the evidence before the trial court.· The appellants indicated that they did not wish to,.appea.r at the hearing of their appeal .... The Republic was repre~ented by Yir. Mtinangi, learned counsel. He supported conviction. In his submission Mr. Mtinangi invited the Court to consider the · evidence of ·pwI and PW2 are Emmanuel Goorge Mvi ta saw the appellants on the mater;ial clay of event at about 6.00pm of 17/e/96 • •••• /2

... •,•·.' the.,_ a;opellants were b1 inkin, 6 pome at a -plei::. "-:·,lled Mjembeni Pombe Shop Nachingwea District. This was one of the undis:P"Uted maw n th,S . ' ·.. . . ., . Prelim~~ary hearing, He over.head some conversation between theat ·· . . . · ( the appellants) sugge.sti.,g Commission of. a ctme and later sa'il them .ins.id& the Complainant's fence sometime in the. evening of th~·· ay~ They were alone. This. piece of evidence was not co_ntroverted by the aprr, 1 lts(Al though in . their defenca the tended .. to genel'.Slly · deny it. Thee are the circumstance :whir" -,-,nnect t.ha appellants with the alleg-ed offence.. This is so because it later tuz>ned out that the complainant• s premises had been broken in 1 to and some articles stolen there fro111 · As said a lo.oking/dressing mirrow was ecoverod after an attempt of tracing the appellants movemens. The evidence of the 6th accused though clearly ia hat of a co-accused w.s duly corroborated._ ' And there is a further evidence of PW3, Ir!f>poctor Salum Ra.is Alfy, who took a tatment of one Abdu Awadhi The statement was admitted as exhibit P5. It is the infox-mation revealed by Abdu Awadhi which led to the recovP.ry of the alleged stolen properties by ma.king the work of PW3 much more easier. And indeed this ma.de possbile to recover the motor in particular at. Elimfano s/o Elikario' s beggagepit. Elimfano had ben the /.·th accued in the trial Court 1 The trial Court found him that he we.s not all involved in the Commission of the crime in point and, I think, it ri{?:htly did so. There was no evidence touching him apart from the inf0rmation revealed i:ID:xkenimt By Awa.dh_i to PW3 which nevertheless did not indicate tha.t the motor was hurried in the beggage pit by Elimfano or at his instance~ Although Awashi was not cal1.0d to testify to the Court PW3. 1 s evidence was not sh&ken at all. Considering the evidence available bafor~ t:t-ie.1 Court I find the.t this appeal backs merits. Accordingly conviction is upheld as being sustainable. As to the sentence imposed on the appellants, I-do not have any reason to vartj it~ The five (5) yl'Jars :i.111ptisonment was within the powers of the trial court as conferred by the Mi_nimum sentende Act, 1972. The value of the stolen properties exceded 5000/=• · The five (5) years imprisprtment was, therefore, legal iri the upsho'!; thiis a.ppea.k is dismissed its entirety• / -,r,.,·. . -/ ·•",..;·.;;.:_;,...~-- SGD., A.A.NCHIMBI PRINCIPAL RZSIDENT MAGISTRATE. (E.J) 8/9/99 u•••/3

,. I J.::1,1 !\ • ·:·,ti : .. i ' ' . ' ·• .. ' ..;. ~-11CHIMBI·- t.,J · , A .. «ba'ent (do not . wish to appeal tesl)ondent: Mr.· Mtinangi (S.A.· 'for ✓

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