Shaibu Abbas vs Republic (HC Criminal Appeal No. 42 of 1999) [1999] TZHC 261 (28 June 1999)

H •: . IN THE HIGJ.{ COUPT OF TANZANIA AT NBEYA dlGti OOUT C)U11Il\1.IL ti2AL NO. 42 OF 199 (igina1 Criminal Case,No. 712 of 1997 of the District Court of Mbeya District at Mbeya Uefore P ". 1r1r10 - esioeit Magistrate) SHAIBU ABBAS ... ... APPELLANT Versus THE REPUBLiC RESPONDENT JUDGENENT The appellant Shaibu s/o Abbas was convicted with the theft mf a radio of his ount one Aisha d/oMussa and shop hreaking c/ 266(1) and 265 of the P.C. He was sentenced to 5 years imprisonment and to pay restitution of shs.38,000/= the value of the radio gassette stolen. • On apseal: to this court he was granted bail by this.. court pending hearing of the appeal. The appeal was heard and the appellant was represented by the learned Mr. Mwangle (Advocate) and whereas was represented by the learned Mr. Boniface (State Attorney); Both learned cousels for both adversary sides could not supprt the conviction and sentence and prayed for the acquital of the appellant and. for his release from the jail. . The basis of the conviction of the.appellant as hel by the trial Magietrate the learned Mr. Lyimo (BN) . was that the appellant confesse.d to PW1 Aisha d/o Musa to refund stolen the radio orally and in writing ds per echihit P1. Ther.e was a clear misconstruction of what the accused is alleged to have confession. In exhibit P1 and in the testimony of P1,41 what the appellant admitted was in these words, to quite from his written admission:- "HATI YA KUKIJBARIO Leo 11.7.97 ruimi ithass Nimekubari ku1i4 Radio na kea si radio nitalipa..fedha shs3 8 ,OOO/: tarehe 27.7.97..a Literally interpreted the swahili quoted wordsmean in English says that:- (J000040C0O.0*VO0 /2

-2.- p Document of. dinission Today the 11.7.97 I Abass admit to refund the radio failure of which I will pay cash shs..38,000/= on. 27.7.97. These words were certainly not a .confeion to the theft and burglary at all but merely an undertaking to refu d 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 4 suspects including the appellant were employees of the appellant. When the business closed at 10.00 pm on the day in question the -keys to premises where there 1. was also the shop of the complainant PW1 were kept by the of a the appellant s employees When he door of the complainant was, found broken next day and her radio cassette stolen the appellant . to appease the complainant so that they remained'do.d business neighbours areéd 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 refuxding him the radio or its. value. .. - The convictin 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 employee. It is the employees who kept the key for the night who would presumally be the likely suspect for these Sffences. The conviction was wrongly entereçl. I quash it. The sentence of 5 years imprisonment and order of compesation of shs,38,000/= are all set aside: The Accised shall be released from imprisonment and his bail sureties are hereby discharged from the bond. . . . .,-. (Sgd.) E.L.K. MWIPOPO

• JJDGED 2 6/29 . .. - Coraiu: Hon. Mwipopo, Judge . . Appellant: Mr.. Mwangóie.- Absent: Mr. Mkumbe Advoeate present — Holding the brief for Mr. Hwangole Appellant: Absent in person. . . . . 0000c000000 /3

-3- c/c Mwakalonge. Judgement delivered in the absence of the appellant but in the presence of nis Advocate and the State Attorney. CN - N \ (gd) i\ c:* ITiFYTHT THIS IS A ThUE COPY OF THE ORIGINAL. E.L.K. IWIPOPO JUDGE DISTRICT REGISTRAR.