Michael Ernest and Others vs Republic (Criminal Appeal No. 48 of 1997) [1999] TZHC 189 (12 April 1999)

.;·. ..__,,I IN THE HIGH COURT OF TA.lZANIA AT MTWARA CRIMINAL APPEAL NO. 48 OF 1997 (Consolidated with Criminal Appeals Nos 49 & 50/97) Qrigirial Criminal Case No. 348 of 1996 of .th Ditrict Court ... o:f°Mtwara at Mtwara BEFORE: S.Ho KINEMELA ESQ., RESIDENT MAGISTRATE MICHAEL ERNEST .AND DrIIBRS •• .._ ..... APPELLANT versus: THE REPUBLICooooeooooooRESPONDENT There were 5 persons who were jointly charged with cattle theft c/s 268 of the Penal Code Cap 16 in Mtwara District Court Criminal Case No. 38 of 1996. They denied the chargeo At the end of the trial all were found guilty as charged and were con,ricted accordingly. Each was sentenced tl the mandatory minimum sentence of.5 years imprisonment. One of them in the :hame of SEV-ERIIIB VITUS has not appealed. '£he other four have appea.J.e%i in the following order:- 1st A.p;e,eJ...UJ:Ct ERNEST ...: ·criminal Appeal No,. 48/97 g!'t AJ?J.).l)pi.Jl lC,lJRIIN4.._t.tJ3N0 ... Criminal Appal No. 49/97 3rd AppeJJ:..<:E-_LVEl!),!'g_CA PAULO - Criminal Appeal No. 50/97 4th APllant SIG:FfilPJEST - Criminal Appeal No. 52/97 appeals Their . were consolidated and heard together. The 1st and 4th appellants are brothers. The 2nd appellant is their sister. The 3rd appellant Veronica is their mother. At the trial the prosecution called 5 witnesses, namely, PW1 MARTHA MPILI, PW2 KASSTI-1 SELEViAN, PW3 1'101-IAHED ISSA, PW4 WP 1665 CPL MWANAIDI and PW5 JUJviA MOHAMED Those witnesses testified to the effect that on 17.11.96 while PW5 Juma Mohamed was grazing PW1 1 s cattle, one he-goat - strayed unnoticed a..'1.d entered the group of goats which Severin Vitus was grazingo Severin who was grazing together with the 4th appella..11.t Sigfrid drove that goat and hid it at the 4th appellant's homeo It was then agreed that ·the 1st appellant Michael Ernest should look for the buyer. Later that idea was abandoned . . on the advice of the 3rd appellant Veronica that they should slaughter it and Vero_nica and the 2nd appellant Christina Albino would sell the meat. Indeed they slaughtered it and the 2nd and 3rd appellants sold the meat at Hdenga to a single customer who agreed to buy all th~ . '' I -'

I 2 meat at shsl. 6000/-o However he paid only 3000/;,.. promisii1g to clear the balance after selling the meato Severine Vitus, the 1st appellant Michael and the 4th appellant Sigfrid each got shs. 1000/-. However their honey moon did not last longo Severine was arrested on.the same day (18.11.96) and the others on the 2nd or 3rd day. All 5 were on 20011096 taken to Court and charged witfl: cattle theft. In his defence Severine denied the charge~ However he admitted to have made a caution Statement Exh P1 before PW4 WP 1665 Cpl Mwanaidi viher'e he admitted to have committed that offence and implicated the first appellants. But at~:::.. he said he did not do so voluntarily but through tortureo But when cross examined by the ProsecutcD he admitted to have made it voluntarily. He further told the Court that the meat he had was from a carcass of a goat from his employer which had been knocked down by a motorcycleo The 2nd appellant Christina said she ate the meat but she did not know it was from a stolen goat. The 3rd appellant Veronica said that she asked for and was given offals of a goat by Severine and the 4th appellant Sigfrid who told her they were from a carcass of a goat of Saidi Alli which had been knocked down by a motorcycleo The 1st appellant 1"Iicha.e1 gave a tbtal denial. He said he only saw · Severine and the 4th appeilant Sigfrid with a carcass of ,a goat which they said had been knocked down by a motorcycle. The 4th appellant denied to be implicatedo these appeals At the hearing of ' · . the 1st and 4th appellants who had expressed desire to be present at the hearing of their appeals, \vere present. The 2nd and 3rd appellants were not present as they had indicated in their memoranda of appeal that their appeals should be heard in their absenceo At the hearing of this appeal the 1st and the 4th appellants maintained their total denialo In their rr.emoranda of appeal the 2nd and the 3rd appellants insisted on their defence of a dead body of a goat (carcass). The learned State Attorney Mr. Vitinangi who represented the Republic at the hearing of this appeal supported the convictions and sentenceso I have carefully considered the evidence on record, the appellants' grounds of appeal, the 1st and the 4th appellants' oral submission, the learned State Attorney's reply, together with the overall circumstances surrounding this case. There is ample evidence by PW2 Kassim Selemani and PW3 Mohamed Issa that PW1 Matha' s he-goat strayed into Severini •·s group of goats, and that eo•/3eoo

·' ·- 3 ·- Severin and the 4th appellant Sigfrid were grazing their cattle together. ·There is ample evidence in Severin's Caution statement Exh P1 that it was agreed that the 1st appellant Michael should look for a buyer, and that that idea was abandoned o:μ the 3rd appellant Veronicas advice that they should slaughter it and she together with the 2nd appellant Christina were ready to sell the meat. Although Veronica and Christina did not steal it Physically, yet under the circumstances of this case they cannot escape the ambit of s! 22 and 23 of the Penal Code Cap 161o ' Severin I s caution statement EyJi. P .1 was very elaborate on how the whole affair .1as conducted. He ad.,ni tted to have cormnitted that offence and implicated. his co-accused. He made that caution statement voluntarily as stated by PW4 WP 1665 Cpl Mwanaidi and admitted by himself when cross-examined by the Prosecutor. There is nothing indicating that what is contained therein is false. The appellants were properly convicted. Their appeals against convictions have no merits and are hereby dismissed. As far as sentence is concerned, the sentence of 5 years imprisonment \ ' . is the minimum for that offence under the Minimum Sentences Act, 1972. The appeals of the 1st, 2nd and 3rd appellants against sentence have no merits and are hereby disn1issed1, As far as the 4th appellant Sigfrid is concerned, according to the medical report Rei'., Ho. P.1/19/161 of 5.3.99 his age is 16 years 1 which means in 1996 when he committed this offence he was aged only about 13 or 14 years. He was therefore not covered by the Minimum Sentences Act, 1972 by--.v:irtul:f of s'- :·2 bf. that· Act., The sentence of 5 yee.rs imprisonment against him is hereby set aside .. The said appellru:it who has been in prison since on 25th June; 1997 is to be released forthwith unless lawfully held in conne~tion with another · charge or chargeso Thus criminal appeals Nos 48/97, 49/97 and 50/97 have been dismissed in their enti;retY. In criminal appeal Nao 52/97 the appeal against conviction has been dismissedo But the appeal against sentence has been allowedo s. No KAJI JUDGE 12/4/99. eoe/400•

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4 Corrun: A .. A. Nchimbi -(DR) Mr~ Mtinangi for Republic (State Attorney) Appellants - present save that Christina Albino (2nd Appellant) is absent informed that fhe is a convict at Ne1r1ala prisons., Qi: Judgment delivered. Right of Appeal explained. Ae it;, fJCHIMBI D/R 12~4 .. 99.