Keneni Mola vs Republic (Criminal Case No. 5 of 1997) [1998] TZHC 2423 (30 November 1998)

IN THE HIGH COURT OF TANZATIA AT TABORA ~ ....... r:-::s,··:e:::•--..-..... ------ APPELLATE JURISDICTION (Tabora Registry) (OR:CGIHAL CRIMINAL CASE no. 5. OF 1997 OF Tff~ DISTRICT COT.ffiT OF TABORA DISTRICT · AT CABORA) I)efore: P.IvI. Kerite •• I::sq • ., RJSIDENT MAGISTRATE KJ3NENI MOLA • • •. •. • •·• • ............. ; ••••• APPELLANT Versus THE llF;PtIBLIC •• J.·•••••••••••••••••••••• RESPONDJHT The appellant., Keneni Molu, was convicted on two offences. Ee was convicted of burglry c/s 294(1) of the penal code, on the first count. [n this count it. was o.lleged thut he ho.d burgled into the house of one }Iussein Hamisi with ir.tent to commit the offanee of robber;1. On the second COTu"'lt he wns c·harged with l"ob·ber-y with violence c/s 285 nnd 286 of the penal code. On this one he was convicted and sentenced ·to 30 ye.rs imp1...,isonment. rrhe allego.tion in the second count was thQt he., on 3/1/97, at 00.30 hrs, at Ipuli, here in Taborn, he entered the house of Hnwa Jumanne and ther,e stole an assortment of nrticles. He used actual violence in order to steal these items, it is also alleged. Apparent.ly, the appellant had been charged o.longside tdth two other persons, Juma Kidelemi and Juma Mo.wezo. ~ . .:-.,:,;c . .::.&:.,-&--.&· • .... .,;..., ••.• ,. " +· _,-- Juma Kidelerni accordL.7g to the record, pleaded guilty te the two offences a.nd wa.s peremptorily sentenced to five .... -=--:a;....i;

'f' ~ ., . 0 . 2 yeo.l"'S imprisonment on the first count (of burglarly) o.nd to thirt-v ;Tears imprisonment on the second cou.."'lt -.-~...:.,..-a,_li,.:,.;:,,. •{tbe one of robber;! with violence). He had attempted to .appeal to the ;jigh Court but hj_s o.ppenl we:.s d.ismissoo. by m:J brother Ne home J. l-f-y brother Hchome J ,was satisfied th.flt tL.c plea wo.s in fo.ct., unequivocc..l. Juma I,awezo was [cquitted b;J the trial Court. ··- Before me he1.,e., Nns Nr. Mw6.1npoma., lecn•ned sto.te c.tto1-•ney., for the Republic/He spondent. Nr. Mwc..mpoma advises I me ttn.t the uppeo.l is without ·substance. Ile so.;!S it I • ' 1" - ,. · a •r, 1 t, · a · c t b r s i,1ou. o. oe cnsmisse .• '; no. 1 cra.nspire . 1.11 our e ore me• if I repl"'oduce will sufficiently br:i.nG out the fo.cts of the- cnse J I wo..s found with stolen property but I was convicted :i:"01" o.nother offance. I was convi9ted of robbery with viole11ce., and w_cts sentenced to 30 years impr:i..sonment. I wo.s fotmd with the ro.dio o.nd a . mattress oJ/ the comrjJ.nirnmt. I ·wo.s found with u bucket of the -~~..:&---l,;..::11:,...;.J comp1c:.inunt. So, r· wc,s onl:v fom1d with these items. I did not go for the robbery. L wa.s sold tbe " . ::-fopert:y- b-;-: the first accused Jumu Kic1elemi. :::::e WD.S with So.idi Kidelemi. 1 .Che robber;! wns mo.de. on 2/1 /97. J wo.s , o.rrested on 3/1/97 with tLe items.I stm"ted to bu:v the property since A.00 a.m. I was fo6lish to buy pttopert· from tbe street. I was a f ' ND:cc urnon. 'J 1 he cwcused uc1.s correctly convicted. :·-"e L'.':'.I'ees · to hr.eve '.been :found. with

t 3 property which was part 6f property stolen that sane night. Tie was found uith a radio worth Sh::,. 75,000/=. ::?e was found with ma"it,1"ess vJorth :.3hs.35,000/=. :r-Ie was fom1d with 2. lamp, brie fcb.se worth . Shs. 2B,000/=·• rJ:here was the1mos flask w6rth Shs 3,000/=. The mattress cover bas worth Shs. 300/0P • '.Che total value was ShB. 149,300/. All this property was identified by owner of the property, r:ussein }farrJisi. Ee was found with the propsrty within 24 hrs. It is true that none. identified him at the site. '.::be ra<lio was, however, recovot-ed frota him hidden,. rphe first accused in fact, said tb.o.t the present appellant wo.s present at the robbery scene. It is eviQ.ent that the Court corr'ectl:v convicted the appellant on the doctrine of recent possession • 11 ~ 1 ho tria'i Uourt, in faet., had only one legal issue,-: before him. It w·as whether in the cil•cwn.stances of those (r) o.t page 201 1 especially at pnge 202 sa:vs: i;:he 1.nw on tl1e subject. of recent por.;session is this~ If a person is· in possession of stolen _propert:v recentl·y o,fter the stealing, it lios on him to account for his ponsession and j_f · he fails to account for it so.tisfo.ctorily, • he is reasonably presu~11ed to have com0 by it dis hone stl;i. It depends on the surrounding circurnstei.nce s wheth.::r·:-:!.he. _is guilty of receiving or stealing. Lapse of. titao progressively weakens tho presumption and finall.y exting:uishcn it. When possession is not rec0nt, no preaumptiou of,guilt arises from the mere fact of possession, for at this stage :i it might reasonabl;7 be infer•rcd

• 4- that tho prisoner had com~ honestly by tbe property. 11 In deciding the question of whether possession is recent relative to the stealing 1egard must be ho.d to the charf:',cter and value of peoperty.w Se.matta J (ns he then was) in the case of ]E!lP!E:~~tJ.:!12.. £~~d;_<;Y- . ..,R., (Cr·iminal Appeal Case no. 163/79'. of Nbe10. Hegistry) in fact o.ptl:v put it, when he said: C 1 • The law does not lo.-y down a general t"ule as to who.t timo is recent enough for tho purpose of invoking the doctrine. The o.nswcr to the question whether a particular.time is recant enough depends, inter o.lia, upon the kind of article involved. Six moutho :mo.y be too long for a cake of soap but recent enough for an 01 ... go.n. 11 rrhc appellant in the instant case, was caught with tho ttcms., (o. radio., a :mattress., o. brief case) ho.rdl;l 24 hI•s after the robbery. Again, we are told that ±he ro.dio hHd been hidden which suggests that.he ,.knew the .K!:PJ.u]:Eef3E. · of his act. :e:e wns., indeed, the actual robber at the house of :,:usscin Eamisi. i:he evidence 1mfurlod in the cas- ,... ovidunce at which onu of his compatriots agreed., was that the trio ho.d pangas. Indeed after one of them (frgt accused

• the one who reci.dil-y pleaded guilt,-) wn.s arrested, he ment:tonc,d the present appellant who, on a seo.rch wassfo1.L11d with tho items. ;:':e was., to m:v mind, .correctly convicted of robbery with violence• · .. ' The appellant i·rns also cbnrgod in the third count of . . . d nnving rc:ce:ive or retaining the article. 'de should not have been ch2rged with that offence.,:, r::e could onl7; ho.ve

.. ' 5 ... charge is therefore sti.',uclr: out ns bGinr.; untenable ·o.t la.w. In.deed, as for the :firat and second counj;,the convictions on them were sound~ The sentences were ' also lawful. The appeal is dismissed in its entiretye JTJDGK At To.bor-a 30th ITovembor 1998 ,'itnte Attorney fol" Respublj_c/RE3spondent.

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