Republic vs Alex Ngetwa (Criminal Revision No. 2 of 1998) [1998] TZHC 2435 (27 October 1998)

'\ IN THE HIGH coum OF TJ-i.NZ!i.NLi. i.T MBEYi1. CRIMINiL REVIS ION NO. 2/98 (From the decision of the District Court of Mbeya Criminal Case No. 632/97) . . THE :RE};'UBLIC., ...... o ••••• • .• •:• ••••••••• , •••• ofFFEICh.NT · VERSUS . ' ·r ALEX NGEI'\Ul..h o ._ • o o o • -~ o o • o o o _e o • • o • • • o • • o o • o RNfrONDENT y RU.LING ... This court called for revision of the judgement of the District Court . . . of riibe;ya which c:Jnvicted the respondent idex s/o Ngetwa for stealing by agent 90 bags c. bags of round. (Insh) potatoes valued at shs.1,350 1 000/::;: and sentenced him. to 18 months in jail without ordering for restitution ;f Tshs.1. ,351,0dbf= · to the victim of the crime one Petro s/o Mtisyo who testified as l'W1 was justfied. When called 1-1pon to show cause why the order of compen3ation-should not be· ' .. ·' made against to him _the rospondt~nt answered that he was not guilty of stealing by agent nt all. Before any order of refund of shs.,1,350,00QI= the conviction must be looked into if it was sound. The ,learned Hr .. Nangela (.Si1.) U:r{pqrtd conviction, sentence and the proposed order of restitution of the stolen prcipert;y"' s value in Tshs. 1,350,000/=. From the testimony of PW1 the accused and,the victim of the crime knew@ other for many years both in DSM, and Mbeya8 At the time of the theft the accused was· staying with victim of hi crime 'as his guest.. May trusted @ other and }:'W1 bought bet.ween 90 - 100 bu.gs of round pottoes from I?W2 Enock s/o Kaporo " out of which ro bag were entruste'ct to the accused to go and sell them for him in DSM. Despite having old tha. the n~~useq, never returned the proceeds thereof to ?W1 until over 6 months elapsed. On being traeed in Kihesa Iringa, the aceused was found selling tomatoes and he confessed to have old'the ,, bags of rolllld potatoe at a los·e the proee& of whfeh he failed to remit to the PW1 for even a single "ttent until he was ·oonvict .. · . in court anJ. the execuse that he was still looking the money to refund to PW1 ..

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• 2 - This was not a civil question of ,the respondent for merely looking :"'or money for him at to refund to PW1. It Wcm a. criminal question of the respondent having sold the potatoes as ag,:::nt oFPWJ n.11 the proceeds of which he stole them by .. ;, ·, ",:. using them fraudulently against the wishes of it$ ·owner.and permanently to deprive the· owner thereof );f the same proceeds. · This is single theft by alient ... , .. ,• ·,. for which the respondent wo..s p:coperly connected anl'.1.' sentenced. to 18 months imprisonment. At the same. time the respondent cannot be left' tci benefit and enjoy the .-: I:, illegn.J.. fruits of __ his crimeo He shou.ld have been ordered to refund the entire shs.1 1 350,000/= value of the 9'0 bags of potat,)es at the DSM market to whee .. ·· . he sold them for ali the treilsport o t,he 90 bags pot.:•.toes was arranged and paid ,J for by the victim of the ,, ! hereby order the accused ltlex · s/o Ngetwa to refund shs.1 1 350,000/= to l-'W1 Petro s/o Mtisyo with immediate effect. 27/10/1998 Coram: E.,L.K., JvlWI?Oi.-0 JUDGE -- 27/10/1998 For Republic Mr. Mulokozi learned State Attorney,. For Respondent .,... Ale:ic Ngetwa present in person,. B/C Mrs. H. Kambndu. Court: Ruling delivered in the presence of the respondent. . ' EL.K. M-::::eoro JUDGE 27/10/1998 I. certify that this :i:s a true and cq:rrect copy of the originai Judgement. ..