Sele Balekele vs Republic (Criminal Appeal No. 59 of 1997) [1998] TZHC 2572 (5 May 1998)

SELE BALEKELE v. REPUBLIC (Mchome, J.) SELE BALEKELE v. REPUBLIC HIGH COURT OF TANZANIA AT TABORA (Mchome, J.) CRIMINALAPPEALNo. 590F 1997 (From the District Court ofKahama District atKahama, LO. Hozza, SDM, in Criminal Case No. 22 of 1996) Criminal Law-Theft-Defences-Defence ofBonaFide claim of right- Whether the defence is available to a wife charged with stealing husband's property The appellant was convicted, by the district court, of stealing her husband's 29 head of cattle and 5 goats. On appeal, her defence of bona tide claim of right was challenged by the State Attorney, who argued that the said defence was not available to the appellant wife. 533 A B C D E F G H I

534 TANZANIA LAW REPORTS [1998JT.L.R. A Held: (i) The defence of bona fide claim of right is available to any offence against property; (ii) The appellant wife, a joint owner of the husband ’ s property, has the right to p pledge her husband ’ s credit and to use his property; (iii) That the wife may have squandered the property does not remove her claim of right over that property. C Appeal allowed Mr. Mtaki, for the Appellant Mr. Mwampoma, State Attorney, for the Respondent E JUDGMENT (Dated 5 May 1998) Mchome, J.: Sele Balekele, a fifty years old peasant housewife from F Nghama Village, Kahama District, was charged with stealing her husband ’ s 29 head of cattle and 5 goats, total valued at shs. 2,080,000/ =. She pleaded not guilty to the cattle theft charge contrary to section 268 (1) (3) of the Penal Code. G She was, however, found guilty, convicted and sentenced to five years ’ imprisonment by the Kahama District Court (I.O.K. Hozza), (SDM). She now appeals against both conviction and sentence. It is undisputed that the appellant is married to the complainant, one Lusangija Jisinza. The complainant in 1996 was attacked with pangas by bandits and very seriously injured. He was hospitalised for several months. When he was discharged he went to live with his brother for j another long period which is unspecified in the evidence on record. When he left for hospital it is alleged by the prosecution that the complainant left the appellant with 51 head of cattle and several goats. But when he came back he saw 29 head of cattle and 5 goats missing.

SELE BALEKELE v. REPUBLIC (Mchome, J.) 535 The appellant had sold them and spent the money. The complainant A reported her to the police who arrested her and laid this charge at her door. In her defence the appellant denied to have been left all that cattle. She says she was left with only 8 head of cattle and her husband took the rest to some other place for pastures. She says she was allowed to sell the 8 head of cattle in order to get money to buy food. Her witness says the appellant ’ s husband left with all the cattle and left the appellant c nothing. In his submission the learned counsel for the appellant submits that the appellant being the complainant ’ s wife had a title to the livestock she is alleged to have stolen and so cannot be held liable for theft. She D cannot steal her own property. He also argues that she has the defence of a bona fide claim of right under section 9 of the Penal Code. Mr. Mwampoma, learned State Attorney, submits that had the appellant sold only 5 or so cattle this would have been a credible number for buying food, but 29 head deliberately and without her husbands consent, is theft. The defence is full of contradictions, he goes on arguing. Mr. Mtaki replied to the second limb of Mr. Mwampoma ’ s argument f by saying that the appellant ought not to have been convicted on the weakness of her defence but only on the strength of the prosecution case. I do not agree with the learned State Attorney that the defence ofbona G fide claim of right is inapplicable to this case. It is applicable to any offence against property. As a lawful wife the appellant has the right to pledge her husband ’ s credit and the right to use his property, including livestock. She is ajoint owner of that property. Merely that she may have squanderedit does not remove her claim of right over that property. If she had taken more than her fair share of their matrimonial property that is perhaps a matter for the civil court. It was unjust to condemn her as a cattle thief. j Therefore I allow this appeal, quash the conviction and set aside the sentence passed against the appellant. She is to be released from prison immediately unless held further in connection with other lawful matters.