Jailos Lyogo and Others vs The Republic (Criminal Appeal No. 92 of 1997) [1999] TZHC 51 (11 March 1999)

p..; IN THE. HIGH COURT OF -TANZf\NIA \·. AT MBil:Y'A · CRTI1INAL 1.PPEt'~L NO. 92 OF 199? . (Orictihating from· Mbeya District Cow;-t Criminal ... MWIPOPO l ,J -: Case No. 779 of 1996) · 1 •.. JAILOS LYEGO ) 2. JOSEPHAT NIIHfiZA 3 •. BOSCO NGONYANI ) ••••• ~ ••••• APPELLANTS ) Versus· THE RSl?iJBLIC ····················· RESPONDENT J 1JD3 EM P]NT The three appellants JOSEPH:\T S/0 "MII·rlJKI, BOSC6 S/0 NGONYJ\NI ·an1 JAILOS S/0 LYIDJO were c0nvicted by the District Court ·o:t""l"lheya simply ccause they . were. found with one hen the next day on 26/8/96 out of the 54 hens valued a_t Shs. 108,000/= which were stolen at arounn 2.00 a.m. on 24 - 25/8/96 fom ,one Gasper. s/o M8.d.ata PW.1 the Zonal Research Officer .. _., at MARTI. Uyole in the Mbcya Mu.riicipality •. The connectinr; witness was PW.3 Onyru1;0 s/o Tala who sells fried chick_en nd chips a.t a Petty Kiosk in Uyole. · He was aprlroe.ched by the . . ·.,;. . 1st appellant. /md ,Joseph:1.t s/o Nihuka sellinr.; live chicken and he bou 0 ht one such chicken for Shs.1,500/= which was later on the next ·dey identified as belon 0 ingto the ccmplainant PW.1. PW.1 identified the hen as belonging to him merely by the cut. beak of the hen and red c0lour. It was testified by' P,J.4 Ha.misi s/o Talaka an, PW.3 that at the time the hen was sold to PW.3 the 1st appell.:int said. he had many '0ther hens for sale and that he vas in company of the 4th accused Restitute Sant;a who Jied before the trial ended as well by the 2nd appellant Bosco s/o N 6 onyani and the 3rd appellant Jailos Lyego. But, there is no conerete evidenc·e in the entire. file connectin'j the 2nd appellant Bosco s/0 Ngonyani and Jailos s/o Lyego with this hen at all. Both P,if.3 and PW.4 saw only the 1st appellant Jos3phat s/o Nihuka selling the hen to 1?Wo3 while in the comp.my of the late 4th accused. It was therefore error to convict the 2nd appellant Bosco Ngonyani and the 3rd apμellant Jailos s/o Lyego with this crime at all. As for the 1st appellant the evidence a!1ainst him was his notion of sellins the one hen to P,Jo3 when he h-:td no hen-shed of his own. But, in his defence he said he got that hen from Dotto Sanga who a.sked the 1st apellant to help him sell if for he wanted some school fees money r-1.nd. he b;)d his own hen--shecl with chickens whieh when se3rched. were founc1

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• 2 - to resembL? the purpotedly' stolen one chicken. PH.1 testifiel that his hens h::,d a special mark of h9.vinlj their beaks cut shot by himself. When PWo3 testified he said the hen sold to him 1 )y the 1st appellant rUd not hDVe a cut beak at all•. It means .that the hen's identity as-belonginp; to the complainant PU.1 was doubtful which doubt should have b0nefittec1 the 1st appellant. Moreover, one hen out of 54 hens could not suffice to prove that the 1st appellant is the one who sto'le,: the .rest of the 53 hens. In short the convictions of. D.11. the three appell9.rits· was quite . . : . shaky. Their convictions for both_ courts are hereby quashed.· The sentence of 5 yGxrs and 1 yenr's imprisonment are hereby set aside. The three appellants ·Josephat Nihuka, Bo'sco s/o Ngonayni and Jailo1' s/o Lyego are hereby acqu.itted from the convictions and discharged fr,Jm prison.with immedi.:i.te effect. 11/3/99 Coram: Hon. Mwipopo, J. 1st Ap1jellant: J 0sephnt Ni lmka - Present. 2nd ;ippellant: Bosco Ngonynni - Present 3rrl Appelb.nt: Jailos s/o Ly,:igo E.L.K. Mwipopo, J, . 10/5/99 For Republic: Mr. Mulokoii - .St::ite i-\ttorney - present. C/C. Mrs.- Mponzi. Court: Judgement delivered in the presence of the accused. / E~L.K. Mwipopo, J. ·. 11/3/99 I CERTIFY that t,his is n true copy of the orir:;inal. -, :· .