Mondi s/o Marwa (Kisengwa) vs Republic (High Court Criminal Appeal No. 58 of 1998) [1999] TZHC 53 (14 March 1999)

1W IN THE HIGH COURT OF TANZANIA ATV1ANZA APPLITE J12ISDICTION • ( YR4A N T ZA REGSThY) " HIGH COURT CRIMINAL APPEAL NO 58 OF 998 ORIGINAL CRIMINAL CASE NO.477 OF 1997 OF THE DISTPICT COURT OF MUSOMA DISTRICT AT MUSOMA Before J.D. Maay' -Esq., D/Magi'strate 1ONDI s/o MARIIA (KISENGWA) .. ... ...•. .APPELTi&NT (OPIG. ACCUSED) •c o• Versus THEREPUBLIC ,.,..ó..o...........,.RESPONDENT çOig. prosecutor) J U D G M E N T This is an appeal by the appellant 'one Mondi Ma±wa, who was jointly charged with five others with cattle theft c/s 268 (1)(3) of the penal Code. The appellant was the 6th accused at the trial. He and two others (3rd and 1+th accused) were convicted of the offence, • and were sentenced to 7 years 'imprisonment. The 'appellant appealed 0 to this couit against both conviction and se'iitence. He was not 'defended-onappeal, but submitted his themdi-'anduxn of appeal which he • applied that the grotmds of appeal Contained therein be adopted, as he decled that he 'did not wish to, be pe'sent at the hear'g of his appeal. The Republic/Reâpondeiit was rèprsentd in this appeal Mr. John Rwabuhanga, learned 'State Attorney who made his debütant appearance before •the High Sour ....as a Sta±e Attorney, having joined the Attorney General's Chambers in Mwanza ±rom a differërit 'Department. Mr. Rwabuhanga. did 'not.. suportth? conviction and the sentence / '

• 2 - s.lely for the reason thtthe:appellantls conviction was based on an uncrroborated evidence of a cc cused one Wambura Marwa Gati. Mr. Rwabuhanga cited the?rovi'sions of section 33(2)f the Tanzania Evidence Act No.6/1967 to; snport his submission. That section provides:- "33(1) When two or more persons are being tried joiitly for the same offence or for different ffences arising out 4f the same transaction, and a donfession of the offence or offences dhar'gd friade b one of those persons affecting himself and some other fif those persons Ia proved, the court may take that confession into onsideration again8t that other., pers.o. • (2) Notwihstanding subsection (1), a convi ction of an accused person shall not be based solely on a confession by a co-accused." I quite agree with Mr. Rwabuhanga, learned ;State Attorney that the conviction of the appellant which was based solely on the evidence of the co-accused who, in law under the circumstances of the case, is an a'ccompJ.J.Ce'as well as a person with very high interest of his own to serve in the matter, was not sound in law 9 the same cannot he left to stand on appeal. The said co-accused one Chacha s/. Wambura Narwa Ghati,, who was the 3rd accused at the trial, was found in possession of the stolen cattle,, but 'alleged thathe got them f'om the appellant. That allegation was, not at all substantiated. .Accord4ngly, I allow this 'appeal in tote. I'q.uash the conviction and set aside the sente- nce of seven years imprisonment which the trial subordinate court imposed on the appellant one Mondi s/o Marwa Kisengewa, I order that the named appellant be released from prison forthwith unless he is fuither held fr another lawful cause. I order accordingly. Appeal allowed. 4 M41J. N\ILA tA JUDGE AT MWANZA I +//99