Bariye Mugesa vs Hasnay Gojengo (PC Criminal Appeal No. 8 of 1998) [1999] TZHC 204 (2 June 1999)

IN THE HIGH COURT OF T1'.'..NZ.:lNIA ··~ .: ". ,1 ,:, . li.T ARUSHA · .. • .. , ·:: (PP) R~~'i.1i· •:wP4:L,_No · s o· ·t99s c GRtMIN .. iL ;i,P]?E:'.,L Nq .. , 148 oi ·· 199. 7 ·:oRrGri-J.'i.L FROM DISTRICT COURT OF B,IBATI '"ilT BABATI ORIGINAL CRIMiN,'i:L C.ilSE; NO 265 OF 1997 OF THE· .PRIM.IJ.RY ... GOlTRT OF. fu'..N:.NG DISTRICT .. ./1.T ·,K..'lTESH . Bf.RIYE MUGESA~ •• -~ •• ~ ••• : •• ; ~ .<.·.APPELLANT VERSUS H;'i.SN.iY GOJENJO •••••••••••••••••••• RESPONDENT: JUD G.E MEN r ,;. : The respondent, Hasnay Gojenjc,,Was charged and convicted for the .,· offence of theft of c/s 265 of the Penal_QQ at Kateshi Primary Court. He was sentenced, among other rd.ers, to :tw.Tve months improsonment. ' 'l'he respondent, successfully appealed to the District Court at Babati. The complainant in the Primary Court is the appellant before this court 'ri' he i appalin~·.,;agiinst: the·:.dec.isin ·qf tq,,pis_trict G ourt in its appellante jur i.sdiction. ,'.ccordi.ng ·.to . .the appel.l?t., . there was enough evidence upon which the Primary court convicted the respondent and the appellate magistrate erred not up holding the .•. conviction.· here is no doubt that the respondent was found with the bicycle in question It is also not dputed that the bicycle ·, . was his property. However it was 'th;:6'cii-isention of the appellant that the respondent has sold the pdrtiuiar. hcycle to him at a price of seven bags of maize. The appellanFl:ilso· ·st"ated that the same bicycle was in his prosession when it was taken away •. T·he only point of identification stated in the evidence is that it was Pi:i.onex in make. It was for the complainant to·establish two things, namely that he had inf act boght a bicycle from the respondent and that the same was stolJ,.en , .. by the respondent while in the possession of the appellant. ' 1 'he trial court beli.eved the evidence tendered on behalf of the appellant that the appellant had bought the bicycle in question from the respondent. The question is was the evidence regarding this issue as credible?. According to the evidence the sale was without any arrangemento It is not common for someone to meet another person and give away seven bags of maize in exchange for a bicycle without proof that the bicycle is infact the property of that person. tloooo•ooo2/-

··•.'; -. The evidence on this issue•'was cetainly suspicious' and should not have been believed. As a result: of this· finding,: the question . thet,ner the· . '• ·. r'. ': . .. , '. :· ,. ·. appellant had been in lawull prosession '.and-that the respondent had . ! . ~ stollen the said biy<::l_e js q,~~st:i..onahle o • The • rusul t 1s .· -th-ere:f.ore that for different reasons other that ·those given ·by the first appellat'e court. J • ..• Order: l' ·, I/' \ 't'.\·· y .\ .• \ ... --< N • M. )1:USiil , .JUDGE --· 2/6/99 This ·J·udg;~~nt is to ½e certified and sent to Babati District .~ r Court for readi~;b the sessions. / .... N.M\SH~ . .,,.---✓.: . ,J1'JB(IB _ ,.,,_..,, 2/6/99 NMM/Ms. . -·. .-,'O .. , ......