John Makota vs Republic (Criminal Appeal No. 14 of 1999) [1999] TZHC 275 (7 September 1999)

,, AT MTWARA AP?£LLATE EXTETJD'ED ,JURISDICTION CRIMINAL APPEAL NOo 14 OF 1999 ORIGINAL CRIMINAL CASE NOo 21 OF 1997 .. OF THE DISTRICT COURT OF NAC}:ING'.dEA AT NACHINGWEA BEFORE: J oKoA. KHALIKI ESQo P/D/MAGISTRATE JOin~ MAKOTA-------------L•--APPELLANT I Versus THE REPUBLIC---------------RESPONDENT JUDGMENT BFORE: S.J.AWASI,SRM (EJ) JOHN MJ.'\KOTA, ap-peals against both conviction and sentence imposed on him by Nachingwea District Court for offence of cattle theft c.s 268 and 265 penal code which he was invi tially jointly charged wi,th :one Herman Makota who was acquitted. The appellant was sentenced to serve 5 years in jail. The appellant and Herman Makota were alleged to have stolen one sheep ii-med by one Enock Kasuluzu on 20th January 1997 at about 2 am at Mnero Village, in Nachingwea District, Lindi Region. .~ The evidence produced durinf, trial was briefly that· the Complainant Enock Kasukuzu who rears animals includine; sheep had noted on the fatefil day at fatefu1 dawn time that. his goats;sn.ecp s11ed was broken and a],l animals have disappeared. The Complainant did not say how -he recovered the ote,r animals but he heard later that a sheep was in the shed of Herman l"'iakota, then the 1st accused. He identifie<i to be his property. Herman told the "J?Olice that the appellant sent the sheep to him a fact which the appellant did not deny. In his grounds of ap-peal the ap-pellant averred that the sheep had just entered his shamba and it appeared to have broken out of its shed and tM.t he had no intention of selling it and did not steal it. He claimed that he seht the sheep to Herman to await anybody who would come forward to claim for his lost animali The Republic did support the conviction and sentmce. Thi$ court concurs vith what the State Attorney had 6aid, that the appellant's action of sending the sheep to his relative and not to Village authorities indicated that he had a bad intention on it_. Accorting to the Village Chairman Ahamad Machelcrtga (DWI) he received reports that the appellant was going arround intending to sell the sheep.

2 The appellants claim that the information of ·li'Intetion to sell" . . . of was a >i:;arsayand so it is weak evidence, is watered down by his act/ leaving the village for Dar es Salaam just 48hours after hhe incident occured, ie without first solving the problem of the alleged tresspassing sheep in. his shamba. There was no evidence what so ever to show that the appellant d• had given any instructions to Herman as what toLw:t.th the sheep which he had put in his shed, in actual fact, he had put it without his consent. The circumstances showed that the ·appellant was the person who stole the sheep and therefore, his appeal fails. The sentence is minimum and proper and therefore cannot be disturbed. The appeal is diiamissed. _.,.--··""· F. -,,;;:;.z,-. ---;z- --tl•rr 1 '/ . . SGD. S.J.A~. SENIO~ --RF.SIDENT "i4AGJ:STRATE 7/9/~3 Judgment has been delivered in chambers this 7th day of September 1 1999 in the absence of the appellant and in the presence of the State Attorney Mr. Mtinangi for the Republic.