Juma s/o Hamisi Omary vs Republic (HC Criminal Appeal No. 14 of 1999) [1999] TZHC 265 (4 August 1999)

T . TlilibRA. . AFFELLATE JURISDIC.TION ( HC) Ci.1.DUNAL APP. No 14 6F 1999 ORIGHIAL CRilHNAL CASE NO 195 eF-·1998 OF DISTRICT COURT 01!, SHINY.A.NGA DISTRICT AT SHINY.ANGA :Before R.E. HW.AIJAGE RESIDENT iVIAGISTR.Alli JUJVIA s/o HM-USI OH.ARY .. O O O • o u APPELLANT VERSJS THE REPUBLIC ••• . .. • • • • •• • •• RE SJ? 0 l'JDEN '.1 1 .J[j TIG.MENT MAS.A.NC BE I J. The appellant Juma If;J,misi Omar.r was charged on two Counts 3 The firat one was iii :respect of burglarly c/ s 294 ( 2) of the penal Code. On this one he was convict<:3d and senter.ced to fue_ years imprisonment. On the second one, that of stealing, he was sentenced to twelv years imr,risorrrnent. These sentences were ordered to run concurrently. That is to say, the appellant is now a erving a term of five years imprisonment. :Mr Mwampoma, learried state attorney who appeared for the Republic before me 9 on a:pIJeal, has subni tted that the ap:peal ha3 no substance ~tall. He had advised that it be disraissed in its entirety. I agree with Mr Hwampoma. If anything this case ought to have been dismissed summarily. On 8/6/98 7 :people broke the back door to the house of the complainant, fil_§a s/o LuIJ,ambe_PWl. From the house the thieves stole a motor-cycle, a Honda ~{L 125. It was at night, before

• midnight. At 1 sOO am a friend was called by the appellant to go and repair a motor cycle. 'J::he friend Shabani Hamisi, PW2, readily accepted. He took s:panners ard :proceeded to the house of the a:p:pellant. Indeed the motor cycle, was there. PW2 discovered that

rr. ,\ '-11 ·,. (HC) Cl-1.APP.N0.14/99 2 the motor cycle had belonged to PWl, hence the rep<;)rt to P'll. The appellant was arrested. I agree with the learned trial magistrate that the doctrine of recent :possession comes into play -- The doctrine simply says that where a perscm is found with a stolen article immediately after the theft, that person will either be the thief himself 9 or a guilty receiver, depending on circums'tances of the case. The circumstances of the case nay sometimes be the nature of the articlEis, whether easily transfera1)le or not; the bulkiness ' of th~ articles; whether the rticles; are co,mon articles or ~ articles: Whether the articles found in the :person of the accused were hidden on placed in the open. These are matters that the Courts consider. But, generally, as Hearne J says, in the case of Narwa Bin Siongo v Rex 1 TLR (B.) at page 201, especially at 11age 202: 11 If a person is in rossession of stolen property recently after the stealing, it lies on him to account for his poscession and if he fails to account for it sntisfactorily 7 he is reasonably :presumed to have come by it dishonestly. It depends on surrounding circumstances whether he is guilty of receiving or stealing. Lapse of time progressively weakens the rresum:ption and finally extinguishes i t-. 11 Hearne J concludes: 11 In deciding the question of whether :possession is recent relative to the stealing, regard rnust be had to the character and value of the :property" •.• ./2.

3 The doctrine of recent :possession is discussed in the f•llewing casesi . 1. Ge•rg_e E?-~rd Komorowski v Rex 1 T.L.R. (R) 322 at page 323: Sim•n Rober'LY...11 J-196,7.J H. C. :D n. 417 3. Oons tan tino Hixij._§y.:;,"l H.C. Cr. Appeal No 163/79 '

• Mbeya - no\ aware if reported~ aiias

4. illy J3akari L Pili J3akari v R Cr. Appeal no 47 of 1991 Court of A1Jpcal for Tanzania (Tiodema)

at page 122 . 6. :Blacks tone's Criminal...l:xa.diruL (1952} J;a..ge 1799.

• to mention but a few. As I say, the conviction was well deserving. The explanation by the appellant to the trial magistrate that he was caught repairing the vehicle, was rightly rejected. Repairs· of automebiles are never d•ne at night. The sentence,was, alse, not on the h.i.gh side. This appeal is dismissed in its entirety. JUTIGE -, Mr Hwampema s. S • .A. for the Re1,ublic. Appellant: Absent.