Jackson s/o Nkya vs Republic (PC Criminal Appeal No. 4 of 1997) [1999] TZHC 401 (11 May 1999)

... IN THE HIGH COURF OF TANZANIA ' AT JViBEYA. -: I . . . i)c Ciill1INAL APPEAL NO. 4 OF 1997 '.. · I .. . . ~ . FM MI 1 i1.ND1\ DISTRICT COURT CRIMINAL >J\1iPEPi.L NO. 1/97 ORIGINA MPANDA URBAN COURT CRIMINAL' CA.SE NO. 291/96 ' - JACKSON s/o .NKYA ·• •••••••• ]l. -~ • •• ·• • '1\lPELLAN~ ~ .• THE REfUBLIC •••••• • • • • • • • • • • RESPONDENT JUDGEMENT !1:1..IPOFO , if..!. "This is'. an o.ppeal by the ·owner of the raqio Jackson Nkya -.alued at ~ ~ \ ,·. shs~"3"0,000/= which was seen being sold by the respondent Neema d/o Kidima . . - : Kimei the accused. .The radio was stolen 'efhile in the hands of PW2 Shukuru ·• . Isa who saw the respondent ·Nea K. Kimei gave the forgotten·radio to take • : j " ' it to the owner who had come from Mpanda PW3 too witnessed the transaction of the radio being·given to the accused who disappeared with it for good. In her defence she testified,to know nothing about the radio. B•t,.her own I witness DW3 Le.fine Japher testified to have not been with the said Neema Kimei on 10/10/96 for she was selling the merchandise of the elsewhere. The other'witness DW2 Amosi Kyando testified to have not known who forgot the rc!:dio ~ehind. ., . ., ., Otherwise, the evidence of the prosecution was watertight·that the said accused Neema when teared to tal-ce the radio to its owner the appellant to whom it diet not reach., She must have stolen ite She was properly identified.by PW2 & PW3.who knew her and they were selline the goods together for the whole day_. rhe decision of the primary court was proper it is reissued. The deci, of the District Court on appeal was wrong it is quashed. The said Neema Kidima Kirnei is convicted with theft of radio of Jackson Nkya valued at shs.30 9 000/= c/s 285 of the I-.c. On the sentence the Primary Court sentenced the said convict Neema Ki0-- Kimei with an order of compensation of shs.30,000/= that is not a punishmento It was wrong for the trial court not to sentence the convict the same is now sentenced to pay a fine of 10 1 000/= or 6 months imprisonment in default thereof. The compensation of shs.30 1 000/= to the owner of the radio Jackson Nkya is confirmed. Failure to pay shall. the compensation distress to issue~

2 The order of costs of shs.30,000/= to witnesses is quashed. This was a criminal case and the Primary court is allowed to impose costs of only shs.1,000/= as .correctly ha<:l by the learned Mr. Nassary (RM) of the first appellate court .of Mpanda District Court _the 30,000/= are reduced to shs.1 1 000/= costs of ,the case to b~. paid to Jackson Nkya. This appeal is allowed to the extend explained above. .. ' E.LoK. MWIFOl:'0 JUOOE 11/5/99. Since the convict Neema d/o Kimei is not present the DR shall return the files to the Mpanda District Court for execution of the sentence gainst Neema Kimei to whom warrant of arrest will issue for her to execute. this sentence in th0 District Court of' Mpanda. •· ,. E.L.K. MWIPOro JUDGE 11/5/99. I certify that this is the true and correct copy of the original Judgement. _,. y/ f .-/·- DISTin~ mxnl~;.AH MBEYA. • · · . .!. ..