Willy s/o Mwaluanda vs Republic (Criminal Appeal No 34 of 1998) [1998] TZHC 2420 (20 November 1998)

I· , - JJ; lJ vtJS . fr1 I ,,,.J~ . f-!t IN '1 1 HE HIGi.-1 ( COUR'r OF' TANZAliA AT MBEYA ··.··•,: (Or:i..ginal Criminal Case Noo 13 of 1997 of M.beya District Court at Hbeya · Before: hA. Lyimo - Resident Magistrate) WILLY S/O .. MWALUANDA° •· ~ •• ":;;" ~ ~ -• ••••• , APPELLANll' Versus THE R:ti;PUBLIC RESP0NDi£NT JlJIY'-dJJE.T'IT -- __,., __ __ 'l'he appell_ant was sentenced to five years irDprisomnent by the district court of flibeya consequent upon a conviction for cattle theft, contrary to ; sections 268 and 265 of the ?enal Code. He felt aggrieved, and his learned advocate, Mr. hbise 1 prefer:tecl this appeal,'·-and argued it before me, in the presence of the learned. stte attorney for the Republic I hr. f'iiulokozi I ;who declined to resist the appeal.· ·me material facts established in evidence were these. The appellant~ vJilly s/o Mwaluanda 1 stayed in one homestead with his mother, Rose l{wtluanda (P>11), and his grandmother 1 Yalipa Ivmypinpa (P\12) :..: ·r-bse (P\·J<l) had heads of cattle which were being grazed and taken care of by the appellant. Once a bull went missing. Clan meeting was called 'and ,the· appe¥J;ant :E)rom_ised to return it. He had taken it to one \1ilson t,l\1alirigo for: training ·on how to pull a plough. 'l'he meeting was attended,_by their cell leader, Jeremiah Mwambapa (PW3), and their village chairman, Geofrey Msolpka (DW:3). On 11.12.96 the appellant thretened before ?W1 and P,v'2 to st.eel all he'ad.s of cattle of PW1o The threat was reported to clan members and to the t1,,,o village leaders (PW3 and DW3). Then during the night of 31.12.96 all eleven heads of cattle of PW1 were stolen. The appellant was at the homestead. A search for them was mounted 1.n which the appellant took part. But·' t.he cattle coltld not be traced. The appellant was then arrested on suspicion on account of the threat. The appellant denied to have stolen the cat't'le

2 - and to have made the threat. ,,._ :' - I would, with respect, agre~ with both learned Counsel that the conviction of the appellant was fonded upon insuffici~~t evidence. 'I'he case depended exclusively upon circurl)stantial evidence, and the Court of Appeal for Eastern Africa held in §i_m.9,lii.Ji:;_oke -Y.:.13:.. 1958 . (:8. A, ) 751 , that in a case depending exclusively upon 1 circumstantial e:vidence, the ' court must I before deciding upon .a convt.c_tion, · find that the :inculpatory .... facts are incompatible with -the inriocence··of the accu,sed, and incapable of explanation upon any other eonable hypothesis than that of guilt. 'fo. be conclusive 1 therefore, circumstantial evidence must· satisfy two ; t, •. prerequisites~ :it must not ol'.l'ly be consistent with the guii't' of the accused, but must equally be inconsistent vlith the guilt· of anyone else. 'lnere was in this.case only the evidence of the thre.at to steal to ~• L,. considero · But . hat' evidence was obviously insf.ficient. A ;threat may be strong circumstantial evidence, but it cannot by itself unsupported by_any other connecting evidence form the basis of a conviction4 In a . •'/: murder case where there was a prior threat to kill, the Court of Appeal (t .-·.,,.,; for East Africa said in \IJail:-t 4 ··~P1~~e,E ____ \CJ!I1£, ·( 1968) b. A. 278 ~ i•vidence of a prior threat or of an ah;10U1ced itention to kill is always admissible evidence against a p'Ei'rson accused .. f 111urder I but its probativ yalue va.tie_s · greatly, an<:l. may be very sm~l or even amount to nothingo Regard 1nust be had to the manner in which a threat is uttered, whether it is spoken bitterly or irirpulsively in a sud.den anger or jokingly, and the reason for the threat, if given, and the _length of time between the threat and the killing are also material.·· So a threat is of the highest value when it corroborates some other e·vidence in order to link the accused with the offence charged. It is weakest on its own, for it is then reduced to mere circumstantial. evidence in the form of a disconnected chain. In the circumstances,of this case, suspicion that the appellant might have perpetrated the offence charged there was. As to proof there was none. / ~ 00•0000000·00000()0 _.,

.. • 3 But suspicion, however strong, cannot supply a basis for inferring guilt when proof· of guilt cannot be sa.fely inferred. beyond reasonable doubt: P. 170. On account of the foregoing reasons, 1 allo.,;, the appeal, q uasli. the conviction, set aside the sentence, and hereby order the immediate release of the appellant from prison unless otherwise lawfully heldo ·~ \ r.,.." , ' ' E:£·,}!@.bh :F'or Appellant: Mro Mbise, advocateo For lepublic~ Mr. i;.1t1lokozi,' S.A. BoPo HOSHI JUDGE. ~ ... - I CERTIFY Tll:id' THIS IB i-~ 'l'RU~ COPY OF 1'HE ORIGIN.At.,.

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