Joseph Kanyama and Others vs Republic (Criminal Appeal No. 75 c/f 76, 77, 78 & 79/96) [1998] TZHC 2429 (31 July 1998)

IN THE HIGH COURT OF TANZANIA AT MBEYA CBJNINAL APPJEAL NO. 75 C/F ?6, 77, 78 & 79/96 (Original Crir'.1inal Case No.122/95 of Sumba~ga . . . ' District Court at Sumbawanga Before:. :E.J.B. Mwakas:inga - D/Magistrate)

1. JOSEPH'. KANYAMA ) 2, GIDO BARNABAS SA!D) · 3,· LINHS MWA1,JANZUMI ) • • ••••••. APPELLANTS
2. JOSEPH lMWANANZUMI)
3. ALFRED NICHOLA.US ) , VERSUS . THE Rt"'PUBLI C ••••.••••••••••••• ~ RESPONDENT JUI',GMENT • • -The f'ive ~ppellai:te., ·J·4seph Kanyama," Linus Mwananzumi, Joseph Mwananzumi, Gido Barna.ba.s Said, and Alfred Nicholaus, were jo:intly arraigned before the district. court 8'f Sumba.wa:nga -0n an fodictment which countai.-rled two counts: First count: Robbery with violence, contrary to sections 285 and 286 of the.Penal Code. Second count Malicious damage to property, ct111trary to section 316(1) of the Penal Code. They· all pleaded not guilty to both cowits and a full trial ensued. They w-e:re acquitted of the second count, but convicted of the first count, and each sentenced to the mandatory minimum imprisonment term of fi~ years· prescribed for the offence. The_ convictfov.i ahd sentence aggriJ?v,ed them, hence these fi"'.~ appeals whose hear:ing,s were consciidated·and: heard in. their absence • 1" • ,.{ as they had opted not to enter appearances. The learned Senior. State Attorn_ey, Mrs. Makuru, resisted the appeal in respect of the X.i-T.st, -~ and .fo~!'~ appeln~~, but declined to support the convictions of the ?Jcn~ and !JI!!: appellants. The material facts established in evidenc·e were thes_e 9 Deodata d/o Cholle PW1 was a clerk registering voters at 'To.masenga shuleni ..station for the 1995 · Parliamentary and Preside:atial elections. . . . ,., the compound of Ta.maseng~ primary school. The registration station ',was with:in- · She had all the required registration .. . ...

,. 2 materials whi•:'l were :in a plastic container (rambo). On 6.8.,95 at about 2.00 pm the first, third and fourth appellants entered the registration Office .... ,..,. ...... --- - e.--- . and demanded from PW1 to be given_all the docurnen:ts for registering voters at that station. Pl:/1 was known to themo They were-fellow villagers. The fourth appellant too!{ hold of her hands whEe the third appellant held. her tightly. ,.,,_ . They assaulted her. At first the i,~~ appellant stood aloof cheering, but later joined them in the assault. She raised an alarm which·, wa · :in no time answered by two teachers of the school, Mbeyela Mazengo PW2 and A).fred Mpfo1be PW3, who found the three appellants. still ·assu-ltin PW1. The f_?:;u-,tl: appellant then grabbed at the package containing the documents and walked away with it followed by the first and third appellants. The documents have not been .~ . ....._ ------- retrieved. They were: Daftari ya orodha ya wapiga kura walio:mdikishwa, Fomu Na 2 yenye namba 0001974 mpaka 000000010, Maelezo kwa JAANDISHI WASAIDIZI WA UCHAGUZI WA RAIS NA WAUNGE 1?95, na UAMUl WA KU'IQKUBALI OMBI • M.TU KUANDIKISHWA ,., KUWA MPIGA KURA FOJ."\IJU NAa IA. - They were all valued at shso30,000/= .. The Village Executive Officer for the area, Peter Zua PW4, was notified and the three appellanfa were named. PW4 registed a report at Sumba.wanga police ', .. station and all the five appellant's were arrested on the following day (78.95) ad charged in court on 9.8.95. PW1 sustained severe pains at her shoulders and back (PF3 - Ext P2), and her gown ·had been torn (Ext P1) iri the scuffle. The appellants denied involvement in the crimes in their defences at the trial. They clainied they were .. arrested at their homes during the night of ?.8. 95 and taken to SU!l)bawanga police station and arraigned in court ·.on I, would, firstl:y, dispose of the ar-peals by the .?..£..C~~ a7:1d -ifth appellants 7 Linus Mwar...anzumi a.>1d Alfred Nicholaus. I would, with repoct, agree with Nrso Hakuru that they were convictE..~ - 1'l no evidence at allo They were not. identified o.t the scene of crime. Their involvement in the matter was merely.alleged in the charge sheet, ?ut no evidence whatsoever was adduced to prove the allegation. With respect to the learned trial magistra+--·, it •o•o!'••o•,/ 3

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• 3 - takes evidence to convict a person of crime. It takes far m•re than mere guesswork. There has to be evidence which is legally admissible in a court of law, and t moreover, such evidence has to prove the guilt of the accused byond all reasonable doubt. I am satisfied that the appeals by' the s-_r and fifth appellants are abundant in -merit and that they must, in consequence, ... __ ,..... - be allolfed. I pass on to consider the a1Jpeals by the fi-E..s!, .!'ii and !.?}:.E_iJ?: appellants, Joseph Kanyarna 1 Joseph ;-,1wananzumi and Gido &rnabas Said, I wnuld, again, respectfully agree with Mrs. Makuru that these three appellan~·s were properly and sufficiently ideP-tified at the scene of crime. The circumstances were favourable to a proper and umriistaken identification. It was in broad daylight. These three appella..'1.ts were well lmown to PW1, PW2 and P\rr:1. They

had talked to PW1 before assaulting here PH2 and PW3 had arrived there in time to find PW1 still being assaulted. :he circumstances, therefore, were · such that the three witnesse,s could not have mistaken other persons for the three appellants. Penal Code section 285 provides that any person who steals e1•w+i,in? P"'rl. use.s violence to obtain or retain the thing stolen is guilty of Robbcryo '.'11.e use or threat of violence, which is an element in the crime of robbery, not only must be for the purpose of obtaining or retaining the thing stolen, but must occur at the time of tb theft or immediately before •r after it, In this cas~, I am satisfied that the use of violence was not only for the purpose of obtaining the d•cuments but had occurred immediately b0forc:, ,. time of, the theft. Inconsequence, I find no merit in the appeals by the three appellants. In the final analysis, therefore, I allow the appeals by the --S9E..'! appellant, Linus Mwananzumi, and _fj. appellant, Alfred Nicho]"'""' ·1.,;i_p1-- their conviction, set aside their sentence, and hereby order their '1l!Tlediate release from prison. However, the appeals by the .tst appellant, Joseph Kanyama, the .hir__i appellant-, Joseph Mwananzumi, and the fourti-, < ----·

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• 4 Said, fail~ and· they are dismissed in th~ir AT MBEYAo 31 July .1998. For. A ppellan tf?: -: For Republic: Absent. t r .... ·· . . Mr. Boniface. ,.

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