Jailos Lyego and 2 Others vs Republic (Criminal Appeal No 92 of 1997) [1999] TZHC 237 (11 March 1999)

p: I V Q, - -A-A-- IN THE HIGH COiIPT OF ANZANIA AT !EA CRIMINk'L PPFIAL NO. 92 OF 1997 (Oriinating from Mbeya Dstrict.Court Crimiñal Case No. 779 of 1996) -. -- - V JAIIJOSLY2DO V •. ,. : JOSEPHhT ) .. . . PPPLL ANTS BOSCO NdONYANI Versus THE RPt1BLIC ............... •.... RESPONDENT JUGTCNT V V V MJIPOPO, J,:T . V .: .• : The three appellants JOSEP}LT 5/0 MIHTJKEP,OSC0..S/O NONYANI an 3ILOS s/Q.LYO were convicted by the District Court of Mheya simply because -they -were found with- one hen the next day on 26/8/96 out of the 5+ hens valued at Shs.108,000/= which were stolen at around 2.00 a.m, on 24 - 25/8/96 from one Gasper s/o Madata PW.1 the Zonal Research Officer at MAPTI Uyole in the Mheya Municipality. V.. The connecting witness was PW.3 Onyango sb .Tala who sells fried chicken and chips at a Petty.,Kiosk in Uyole.. He -was aproached y the 1st appellant. And Josephot s/o Nihuka selling live. ChiCkefl and he bought one such chicken for Shs.1 ,500/=which was later on the rext?da V identified as helorLing to the cemp1ainnt P' • P4.1 identified the hen as belonging to him merely by the .cut beak of the hen and red colour, It was -testified by PW.4Haisi ste Talaka and P11.3 that at the time the hen was sold to P,3 thê.lst appellant said he had many other hens for dale and that he was in company of the 1 +th accused Restitute Sanga who died before the trial ended as well by the 2nd appellant Bosco s/o Ngonyani and the 3rd appellant Jailos Lyego. But, there is no concrete evidence in the-entire rile oonnecting the 2nd appellant Bosco s/o Ngonyani and Jailos s/o Lyego with this hen at all. BothP1.3 an1kW.4 saw only the 1st appellant Josehat s/o Nihuka selling the hen to PW.3 while in the company of the late fth accused. It was. therefore error to convict the 2nd appellant Bosco Ngonyani and the 3rd appellant Jailas s/o Lyego with this crime at all. As for the 1st aDpellant the evidence against him was his notion of selling the one hen to P-/,3 when he had no hen-shed of his own. But, in his defence he said he :çot that hen from Dotto Sanga who asked the 1st appellant to help him sell if for he wanted some school fees money and he had his own hen-shed, with chickens which when -searched were found . .. . . . ./2

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