Shaibu Abbas vs Republic (HC Criminal Appeal No 42 of 1998) [1999] TZHC 333 (28 June 1999)

IN T'HE HIGH COURT OF Tfu'l"ZANIA AT fiBEYA HIGH. COUBT Cirn'1INAL Al-'PEAL NO o 42 OF 1998 (Original Criminal Case No. 712 of 1997 of the District Court of Mbeya District at Mbeya Before: Fu A. Lyimo Resident Magistrate) SHAIBU ABBAB APPELLANT Versus THE REPUBLIC RESPONDENT JUDGnIENT The appellant Shaibu s/o Ab.bas was convicted with the theft "'f a radio of his aunt one Aisha d/o Mussa and ehop breaking c/5"' 266( 1) "2.nd 265 of the P. C. He was sentenced to 5 yea.1.s imprisonment and to pay restitution of shs.38 ,000/= the value of the radio eassette stolen. On appeal to this court l1.e was granted bail by this court pending hearing of the appeal. '.L'b.e appeal was heard and the appellant was represented by the learrnd fiir. r,1wanle (Advocate) and ,vhereas the Hepublic was represented by the learned Mr. Boniface (State Attorney). Both learned counsels for both adversary sidee ceuld not suppert the conviction a...YJ.d ,sentence and prayed for the acquital .. of the appellant and for his release from the jailo 'U1e basib of the conviction of the appellant as held by the trial Magiotrate the learned IvJr. Lyimo (RM) was that the appell2 .. 11t confessed to PW1 Aisha d/0 Musa to refund stolen the radio orally ai--id j_n \vriting as per exhibit P1. There was a clear misconstructior~ of what the accused is alleged to have . confessiono In exhibit P1 and in the testimony of P:if1 what the appellant admitted was in these words, to quite from his written admission:- ·; HATI YA KUKUBARI. Leo 11. 7 o 9? niirni Aba.s.s :;:Jimekubari kulipa Radio na kB.ma si radio nitalipa fodha shs.38,000/cs tare½e 2?.7e97•••••;; Literally interpreted the swahili quoted words meai'l in English says that:- c.i o o o o • o_o o o llo o g u o o /2 (

2 . ·l)ocument of l.d .. rt1issiOJlu Today the 1 'l. 7. 97 I Abass ad.mi t to refund the radio failure of which I will pay cash shso38,000/= on 27.7.97.;, These v-iord.s were certainly not a confession to tl1e theft and burglary at all but merely an undertaking to refund the radio in kind or to cash. The background of the burglary and theft justified the appellant to bare this cross of refunding the radio. The theft was an inside job done by one or all the l~ suspects including the appellant were employees of the appellant. vhen the business closed at 10.00 pm on the day in question the keys to premises where there was also the shop of the cor,1plainant FW1 were kept by the of a the appellant I s employees. :Jhen the door of the complainant was found broken next day and her radio cassette stolen the appellant to appease the complainant so that they remained· gooct·business neighbours agreed to settle their differences by him refunding the radio or its value. But, burglary and theft can not be founded on an afterward admission to mitigate the complainant's loss by refunding him the radio or its valueo 'l'he convicti•n lacted any other concrete evidence and after all the key holders to the premissed leaving to the_ broken shop of the complainant was not the accused at all but his employeeo It is the employees who kept the key for the night who would presumally be the likely ,suspect for these offences. 'rhe conviction was wrongly entered. I quash it. 'I'he sentence of 5 years imprisonment and order of compesation of shs.38,000/= a.re all set aside. 'l'he Accused shall be released from imprisonment and his bail sureties are hereby discharged from the bond. (Sgd,) JUDGE. Coram Hon. fiiwipopo, Judge Appellant: Mr. IViwangole - Absent: Mr. l'lkumbe Advocate present - Holding the brief for Vir. l'lwangole. i~ppellant : Absent in person. OOOQQOoOQCO /3

• 3 - C/C !0.wakalonge o Judgement delivered in the absence of the appellant but in the presence of ..... , his Advocate and the State J-';.ttorney .. :C.L.K. MWIPOPO tTUDGE,J ... ·, ; · .. i.-,·· DISTRICT itE'GISTRARo "