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Judgment

\ ~1IPOPO 1 ,J •. :

Th--<:-J G-A IN THE HIGH COURT OF TANZANIA AT MBEYA CRTI1INAL APPEi~L NO. 92 OF 1997 (Originating from Mbeya District Court Criminal Case No. 779 of 1996)

JAILOS LYJ:iJ3O )
JOSEPHi.;.T NIHlJKA ) ~ • • • • • • • • • • J\PPELLANTS
BOSCO NGONYANI ) Versus THE REPDBLIC o•oooeooocoooeoa••aooo RESPONDENT JUDGEMSNT The tbree appellcints JOSEPHjT S/0 MD!UK!, BOSCO S/0 NGONYANI and JAILOS S/0 LYEDO were c:mvicted by the District Court of Mheya simply becnuse they wer8 f)und with one hen the next dc.--i.y on 26/8/96 out of the 54 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 Mdata PW.1 the Zonal Research Officer c,t MARTI Uyole in the Mbeya Municipality. The connectirn; witness was P,J.3 Onyan.'Y,O s/o Tala who sells fried chicken and chips c.t a Petty Kiosk in Uyolea He was approached by the 1st appellant. /.mrl .Jose"'.,h-":\t s/o Nibuka sellinr; live chicken and he bought one such chicken for Shs.1,500/= which was later on the next day identified as belon;:;ing to the ccmplaino.nt PW.1. PvJ. 1 identified the hen as 'oelonginp; to him merely by the cut beak of the hen ond red colour.. It was testified by PvJ.4 Hamisi s/o Talaka a.nc.l PW.3 that at the time the hen was sold to PW.3 the 1st appell,:mt sai'l. he had many nther hens for sale and that he vas in company of the 4th accused Resti tute Sarn;a who died before the trial ended as well by the 2nd appellant Bosco s/o Nt3:onyani and the 3rd appellant Jailos Lyeo. But, there is no conerete evidence in the entire file connectinr; the 2nd appellant Besco s/o Ngonyani and Jailos s/o Lyego with this hen at all. Both Pi,.f.3 ancl PW.4 saw only the 1st appellant Josephat s/o Nihuka selling the hen to PWo3 while in the comp3.ny of the late 4th accused. It was therefore error to convict the 2nd appellant Bosco Ngonyani and the 3rd api;ellant Jailos s/o Lye.go with this crime at all. As for the 1st appellant the evidence a~~ainst him was his notion of selling the one hen to P'lo3 when he hrn:1. no hen-shed of his own. But, in his defence he said he :,;ot that hen from Dotto Sanga who asked the 1st ap~~ellnnt to help him sell if for he ~:mted some school fees money and he had his own hen-shed with chickens whieh when se.3rched were found .: ••••• /2

2 - to resembl~ the purpotedly stolen one chicken. PH.1 testifierl thnt his hens h.:,d '3. special mark of h:i.vin1;1; their beaks cut shot by himself• When PW.3 testified he said the hen sold to him by the 1st ar,pellant did not hove a cut beak at all-. It means that the hen's identity as belonginr; to the complainant PW.-1 was doubtful which doubt should have b(mefitte,j the 1st appellant. Moreover, one hen out of 54 hens could not suffice to prove that the 1st appellant is the one who stole the rest of the 53 hens.- In short the convictions of cu.l the three appellants was quite shaky, Their convictions for both courts are hereby quashed_ •. The sentence of 5 yexcs and 1 year I s imprisonment are hereby set aside•· The three appellants Joseph:'l.t Nihuka, Bosco s/o Ngohayni and Jailos s/o Lyego are hereby acqu1:tted from the convictions and discharged from prison with immedi.'.lte effect.- (Sgd.) 11/3/99 Coram: Hon. Mwipopo, J. 1st Ap1)ellant: J 0sephnt Ni huka - Present. 2nd 1tppellant: Bosco Ngonynni - Present 3rr1 Appellant: Jailos s/o Ly,Jgo E.-L.K. Mwipopo ,- J. 10/5/99 For Republic: Mr. Mulokazi - Strite Attorney - present. c/c. Mrs. Mponzi. C0urt: Judgement delivered in the presence of the accused. I Ci:'JRTIFY that this is n ( S,.,.d ) 1-:,i• 0 BoLoK. Mwipopo t J. 11/3/99 true copy of the orisinal.

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Judgment

\ ~1IPOPO 1 ,J •. :

Th--<:-J G-A IN THE HIGH COURT OF TANZANIA AT MBEYA CRTI1INAL APPEi~L NO. 92 OF 1997 (Originating from Mbeya District Court Criminal Case No. 779 of 1996)

JAILOS LYJ:iJ3O )
JOSEPHi.;.T NIHlJKA ) ~ • • • • • • • • • • J\PPELLANTS
BOSCO NGONYANI ) Versus THE REPDBLIC o•oooeooocoooeoa••aooo RESPONDENT JUDGEMSNT The tbree appellcints JOSEPHjT S/0 MD!UK!, BOSCO S/0 NGONYANI and JAILOS S/0 LYEDO were c:mvicted by the District Court of Mheya simply becnuse they wer8 f)und with one hen the next dc.--i.y on 26/8/96 out of the 54 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 Mdata PW.1 the Zonal Research Officer c,t MARTI Uyole in the Mbeya Municipality. The connectirn; witness was P,J.3 Onyan.'Y,O s/o Tala who sells fried chicken and chips c.t a Petty Kiosk in Uyolea He was approached by the 1st appellant. /.mrl .Jose"'.,h-":\t s/o Nibuka sellinr; live chicken and he bought one such chicken for Shs.1,500/= which was later on the next day identified as belon;:;ing to the ccmplaino.nt PW.1. PvJ. 1 identified the hen as 'oelonginp; to him merely by the cut beak of the hen ond red colour.. It was testified by PvJ.4 Hamisi s/o Talaka a.nc.l PW.3 that at the time the hen was sold to PW.3 the 1st appell,:mt sai'l. he had many nther hens for sale and that he vas in company of the 4th accused Resti tute Sarn;a who died before the trial ended as well by the 2nd appellant Bosco s/o Nt3:onyani and the 3rd appellant Jailos Lyeo. But, there is no conerete evidence in the entire file connectinr; the 2nd appellant Besco s/o Ngonyani and Jailos s/o Lyego with this hen at all. Both Pi,.f.3 ancl PW.4 saw only the 1st appellant Josephat s/o Nihuka selling the hen to PWo3 while in the comp3.ny of the late 4th accused. It was therefore error to convict the 2nd appellant Bosco Ngonyani and the 3rd api;ellant Jailos s/o Lye.go with this crime at all. As for the 1st appellant the evidence a~~ainst him was his notion of selling the one hen to P'lo3 when he hrn:1. no hen-shed of his own. But, in his defence he said he :,;ot that hen from Dotto Sanga who asked the 1st ap~~ellnnt to help him sell if for he ~:mted some school fees money and he had his own hen-shed with chickens whieh when se.3rched were found .: ••••• /2

2 - to resembl~ the purpotedly stolen one chicken. PH.1 testifierl thnt his hens h.:,d '3. special mark of h:i.vin1;1; their beaks cut shot by himself• When PW.3 testified he said the hen sold to him by the 1st ar,pellant did not hove a cut beak at all-. It means that the hen's identity as belonginr; to the complainant PW.-1 was doubtful which doubt should have b(mefitte,j the 1st appellant. Moreover, one hen out of 54 hens could not suffice to prove that the 1st appellant is the one who stole the rest of the 53 hens.- In short the convictions of cu.l the three appellants was quite shaky, Their convictions for both courts are hereby quashed_ •. The sentence of 5 yexcs and 1 year I s imprisonment are hereby set aside•· The three appellants Joseph:'l.t Nihuka, Bosco s/o Ngohayni and Jailos s/o Lyego are hereby acqu1:tted from the convictions and discharged from prison with immedi.'.lte effect.- (Sgd.) 11/3/99 Coram: Hon. Mwipopo, J. 1st Ap1)ellant: J 0sephnt Ni huka - Present. 2nd 1tppellant: Bosco Ngonynni - Present 3rr1 Appellant: Jailos s/o Ly,Jgo E.-L.K. Mwipopo ,- J. 10/5/99 For Republic: Mr. Mulokazi - Strite Attorney - present. c/c. Mrs. Mponzi. C0urt: Judgement delivered in the presence of the accused. I Ci:'JRTIFY that this is n ( S,.,.d ) 1-:,i• 0 BoLoK. Mwipopo t J. 11/3/99 true copy of the orisinal.

Jailos Lyego and 2 Others vs Republic (Criminal Appeal No. 92 of 1997) [1999] TZHC 397 (11 March 1999)

Judgment

\ ~1IPOPO 1 ,J •. :

Discussion

Jailos Lyego and 2 Others vs Republic (Criminal Appeal No. 92 of 1997) [1999] TZHC 397 (11 March 1999)

Judgment

\ ~1IPOPO 1 ,J •. :

Discussion