Republic vs Alex Ngetwa (Criminal Revision No. 2 of 1998) [1998] TZHC 2492 (27 October 1998)

-·•.·:.; ( IN THE HIGH coum: OF TANZJI.NL\ ·.· · iT MBEYA CRIMINAL. ,,REVISION NOe 2/98 · ;,i I. ( From the-· dec·:i.sion of the Distr.i'c,t ,Court .• of Mbeya_ <::riminal Case No.,· 6?2,/97) • ii, • : THE REI:-·UBLIC.,. o.o ... o ••• o.o ••••• •.•• .. : ••• ~ ••• _.f;.FPLICii.NT VERSUS ' . ALEX NGEI'WA • o • • • • o o • o o o • o o o e o • o o • ~ - o o • • o o o :RESl-ONDENT• ... · · RULING· 1:1-·or 9..i...i.t. This court calld for revision of. the judgement of'the District Court of Mbeya which convicted the respondent i'llex s/o Ngetwa for ·stealing by agent 90 bags :. -( .. bags of rotlnd (Insh) potatoes valued at shs.1 350,000/= and sentenced ·hi to 18 ' 1 .'• . ' . . . . . months in jail without ordering for',restitution of Tshs.1,351,000/= to the victim of the crime one 1-'etro s/o Mtisyo who test.:i.fied as I''W1 ·was justfied .. When called upon to show cause why the order 6f cbmpens-;;,.:tion should not be made against to him the respondeht· answ.ere•ci. that he was not guilty of stealing :;_• I' . ., by agent nt all. Before any order of refund of shs.1,350 1 000/= the convictiori must be looked ., into if it was sound;· The .larned Mt .. Nan.gel?. (Si1.) suppqrted convition, sentence . . and the proposed order of ·res'ti tut ion of the stolen property-' s vqJ.,ue _ in Tshs. 1 ,350,000/=.· From the testimony of <i?W"'1 the accused o.nd the victiQl .-.::>f the crime knew·@ other for many years both in DSM, nnd Mbeya.. At the time of the theft the accused W.:IB staying with ·v'ictill) of t'he crime as his guest •. May trusted@ other . and PW1 oought between 90 ,.;·:·:;-qo bags of round potatoes from PW2 Enock s/o Kaporo out of which ,n bag were entrusted to the accused t.o r:;o and sell them for him in .... '·i:Js:r-,f•: ., Pe,iSp.ite ving -.t'loid th the aHused never returned the proceeds thereof to_ ?W1 until over 6 montM ·elapsed! On being t:i:-a·ed in Kihesa r:ringa, the aceused was found sell~--ig tomatoes and he confessed to. hay,e eold the ,i· ba&"S of roUlld potatoe15 at a lo:;,15 the p'roeee~-- _of whih he failed t'-reinit to the PW"I for even . .. • - J a single •ent until JiEi was ·eonvict ~ _ . . in court and, the execuse. that he was still :.i~t:,l.,-\ ~. . looking the money to refund to PW1 .. ( ,.

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• 2 - This was not a civil question of the respondent for merely looking .c,1r money . . for him nt to refund to PW1 • It WctS a criminal questiiJn of the respondent having sold the potatoes as agE:!nt of PW1 all the 1jroceeds of which he stole them by ...... using them fraudulently ago.inst the w'ishes or its· owner and permanently to deprive the owner thereof of the same pn:,ceedso 'rhis is single theft by agent ... , ...... ; ; .. for which the respondent w.J.s prnpe.rly . co:ru:i.ectee', a.n.J. sentenced to 18 months imprisonment. li.t the same time the respondent cannot be 16ft to benefit nnd enjoy the illego.l fruits of his. crime., lfo should have ·been ordered to 'ref"Lmd the entire shs.1;:350,000/= value of the 90 bags of potat•)GS at the DSM market to where he sold them for.1.111 the trecnsport of the 90 bags pot.:i.toes was arranged and paid • • I hereby order the accused Ji.lex s/o Ngetwa to refund shs.1,350,000/= to 1:'W1 Petro-s/o Mtisyo with immediate effect. Date: Coram: 27/10/1998 EoL.K. MWI?Ol-0 :!~ 27/10/1998 Hon •. E.L.K .. Mwip:)po 1 J., For :Republic ~lro_ Mulokozi, learned Stnte .Ltt::irney o For Respondent - Alex Ngetwa present. in person. B/C Mrs. H. Kambci.du •. Court: Ruling delivered in tl-1e presence of the respondent., EoL•K• Mi-::::eoro JUDGE 27/10/1998 O I cefrfi'"fy that this is a true and correct copy of the original Judgement;. / .,_, A ,, } /,,,. ', h.--· . i DISfRICT REGISTRAR MB:E::YA ::